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National Telecommunications and Information Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
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Federal Aviation Administration (FAA), DOT.
Final special conditions.
These special conditions are issued for the Gulfstream Aerospace Corporation (Gulfstream) Model GVII series airplane. These airplanes, as modified by Gulfstream, will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is electro-hydraulically actuated seats equipped with backup power supply. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Effective August 13, 2019.
Alan Sinclair, AIR-675, Airframe and Cabin Safety Section, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, Federal Aviation Administration, 2200 South 216th Street, Des Moines, Washington 98198; telephone and fax 206-231-3215; email
On October 12, 2018, Gulfstream applied for a supplemental type certificate for electro-hydraulically actuated seats equipped with backup power supply in the Model GVII series airplane. The Gulfstream Model GVII series airplane, currently approved under Type Certificate No. T00021AT, is twin-engine, transport-category airplane with seating for 19 passengers and a maximum takeoff weight of 79,600 pounds.
Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Gulfstream must show that the Model GVII series airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. T00021AT or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Gulfstream Model GVII series airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
The Gulfstream Model GVII series airplane will incorporate the following novel or unusual design features:
Hydraulically actuated components on airplane seats, including hydraulic reservoir, pump, actuators, and backup power systems.
Hydraulically actuated components and backup power systems on airplane seats are considered novel or unusual by the FAA. Therefore, we developed special conditions that contain the additional standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The FAA has considered the installation of seats with these features to have four primary safety concerns:
1. Reliability of the backup power supply;
2. Safety hazards to the occupants from the hydraulically actuated components of the seat;
3. Structural integrity of the hydraulic components; and
4. Flammability.
Emergency exits must be accessible to the passengers, and the effectiveness of evacuation must be maintained. Typical airplane seats can be positioned manually to the lateral (track) and directional (swivel) taxi, takeoff, and landing (TT&L) position by mechanical means, so that the seats can be positioned accordingly in the event of a loss of cabin power. For this electro-hydraulically operated seat design, in lieu of a manual means to re-position the hydraulically operated seat features (backrest, seat pan, and leg-rest deployment) for TT&L, a backup power supply (BPS) temporarily powers the hydraulic system in the event of loss of cabin power. The BPS is deployed, and intended only for use, in the event of a loss of cabin power. If the seats are installed in the path of the emergency over-wing exits, failure to return the seat to a TT&L position may have an adverse effect on evacuation. Substantiation of 14 CFR 25.809(b) and 25.813(c)(2)(ii) must be shown with the seats in their most adverse positions.
It must be shown that the hydraulically actuated components of the seat pose no safety hazard to the occupants or airplane. This includes injuries caused by crushing of airplane occupants who are between the hydraulically actuated components and any part of the passenger cabin when seat features (
The FAA has also considered the emergency-landing dynamic conditions for the installation of electro-hydraulically actuated seats. The applicant must show that the hydraulic system (actuators, reservoir, lines, etc.) remains intact and free from leakage under the conditions specified in § 25.562. Testing of each seat's hydraulic system per § 25.1435(c) may be conducted off of the airplane.
Flammability of hydraulic fluid used in the seat-movement mechanism must be considered. If the fluid is flammable, it could contribute to a post-crash or in-flight fire. Any failure modes that would result in release of the flammable hydraulic fluid during a post-crash or in-flight fire, causing such fluid to materially increase an existing fire, must be examined. Examples of this could be flex lines burning through and releasing the flammable hydraulic fluid, or the fluid reservoir could be heated in a fire, resulting in a boiling-liquid, expanding-vapor explosion. The potential for spontaneous ignition of the fluid coming into contact with hot surfaces or other ignition sources should also be addressed. The applicant should examine any possible failure mode in which the flammable hydraulic fluid could be absorbed into materials, such as the seat foam and fabric, carpeting, etc. The applicant must show that any fluid-soaked seat parts remain self-extinguishing. The applicant must also show that flammability of dry residue, which may be present from a slow leak or fluid seepage, does not degrade the flammability characteristics of any materials the fluid contacts, to a level below the requirements specified in § 25.853.
These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The FAA issued Notice of Proposed Special Conditions No. 25-19-10-SC for the Gulfstream Model GVII series airplane, which was published in the
As discussed above, these special conditions are applicable to the Gulfstream Model GVII series airplane. Should Gulfstream apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. T00021AT to incorporate the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on one model series of airplane. It is not a rule of general applicability and affects only the applicant who applied to the FAA for approval of these features on the airplane.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(f), 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Gulfstream Aerospace Corporation Model GVII series airplanes.
1. It must be shown that the probability of failure of the backup power supply to return seat components to the required taxi, takeoff, and landing position is no greater than 10
2. It must be shown that the hydraulically actuated components of the seat pose no safety hazard to the occupants. Hazards to be considered, per the latest revision of Advisory Circular 25.1309-1, at a minimum are:
a. Injuries caused by crushing of airplane occupants who are between the hydraulically actuated components and any part of the passenger cabin when the leg rest or backrest is actuated.
b. The risk of loss of function of a control or proximity switch resulting in the pump motor being commanded to stay on after the hydraulic actuator(s) have reached their minimum or maximum limit, creating potential for motor overheating or fire.
c. The potential for a significant contribution to a fire in the event fluid comes into contact with hot surfaces or other ignition sources, and the potential for release of toxic or flammable vapors and gasses.
3. It must be shown that the hydraulic system (actuators, reservoir, lines, etc.) remains intact and free from leakage under the conditions specified in § 25.562. Testing of each seat's hydraulic system per § 25.1435(c) may be conducted off of the airplane.
4. Section 25.863 requires consideration of any effects the hydraulic fluid, including the fluid as a dry residue, could have on combustible or absorbing materials. The characteristics of such flammable fluid in these conditions must be tested to the requirements of § 25.853(a) and (c), or the materials must be shielded in a manner that prevents contact by the fluid. However, as an alternative to such testing or shielding, the applicant may provide, in accordance with § 25.863(c), a quick-acting means that alerts the crew that hydraulic fluid has leaked.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes restricted areas R-2205 A, B, C, D, E, F, G, H, J, K; Fairbanks, AK, and revokes restricted area R-2205; Stuart Creek, AK, over the Digital Multipurpose Training Range (DMPTR) and the Yukon Training Area (YTA), which provides a more realistic protective airspace required for hazardous activities within the Joint Pacific Alaska Range Complex (JPARC).
Effective date 0901 UTC, October 10, 2019.
Kenneth Ready, Airspace Policy and Regulations Group, Office of Airspace Services, Federal Aviation
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish restricted area airspace at Fairbanks, AK to support the United States' Air Force and Army to provide larger airspace to more realistically conduct service and joint hazardous training activities, consistent with current and future combat environments.
The FAA published a notice of proposed rulemaking for Docket No. FAA-2016-9479 in the
In their response to the NPRM, the commenters raised several substantive issues. Two commenters stated they did not agree with the proposal but did not state a reason for their objection or an aeronautical suggestion to consider, these comments were not addressed. Alaska Air Carriers Association commented on R-2201 Ft. Greely Alaska, their comments were addressed in that rulemaking action's supplemental NPRM. The comments are categorized in the following groupings: (1) Safety, (2) financial burden cost for fuel (3) airspace design being overly complex; (4) Trans-Alaska Pipeline and (5) Chena River VFR corridor.
Having considered the issues and recommendations provided by the commenters, the FAA offers the following responses.
Four individuals commented that the expansion would be unsafe due to the rapidly changing weather conditions and terrain in the area.
The FAA does not agree. The expansion from the current restricted area's western boundary is 10 miles to the west abutting the Class D airspace over Eielson Air Force Base and 3 miles to the north, with the airspace divided into low altitude and high altitude subdivisions. Based on public comment, the subdivisions and stratification were modified to enable the using agency (U.S. Army, AK, Joint Base Elemendorf-Richardson) to release volumes of airspace to the controlling agency (FAA Fairbanks Approach Control) for use by the public when hazardous activities are not scheduled. Aircraft have the availability to fly through the inactive restricted areas when the low subdivisions are released by the using agency. Additionally, information provided by the FAA aeronautical study and Eielson Air Force Base (AFB) air traffic control facility concluded very little civilian traffic traverses the east side of the Eielson Class D where the restricted area has been expanded; conversely, west of and through Eielson Air Force base remains available to IFR and VFR aircraft. Moreover, the expanded areas of the restricted areas are generally over the higher ground in the area, allowing civil traffic the safety of maneuvering in the lower ground around the restricted area expansion. At times, however, aircraft may be required to maneuver north or south earlier or later than desired to avoid an active restricted area.
Lastly, this proposal was analyzed by a safety risk management panel that included representatives from AOPA and Alaska Airmen Association. No hazards were identified with the expansion of this airspace.
An individual commented that the expansion would be a major financial cost of aviation fuel for pilots transitioning from Fairbanks to the eastern portions of the state and to Canada.
The FAA does not agree. For pilots transitioning between Fairbanks and eastern Alaska or Canada, minor adjustments to flight plans may be required when the restricted area is active. In most cases, flight paths will not change significantly (if at all) because civilian aircraft already operate around the pre-existing restricted airspace and the portions of the Viper and Yukon military operation areas (active from 8:00 to 18:00, Monday through Friday), within which the restricted area expansion is established. Therefore, there will be no significant change in cost to IFR civil aircraft that are already routed around these airspace areas consistent with air traffic control procedures. Additionally, as stated earlier in this document, the aeronautical study indicated that very little civilian traffic traverses east of Eielson. Therefore, VFR aircraft are minimally impacted, and they have the option to fly through and west of Eielson AFB.
In an effort to minimize impact to non-participating aircraft, the restricted area incorporates subdivisions and stratification. Based on public comment, the subdivisions and stratification were modified to enable the using agency to release airspace to the controlling agency for public use when hazardous activities are not scheduled.
AOPA commented the new proposed restricted areas proposed would create a complex matrix of airspace segments. AOPA is concerned that the complexity of this matrix is confusing and will lead to pilots inadvertently penetrating the airspace.
The FAA agrees with this comment and has realigned the airspace into smaller rectangle subdivisions instead of large 45-degree slanted subdivisions with irregular boundaries. This redesign of the airspace proposed in the NPRM was discussed extensively at the FAA's safety risk management panel where numerous aviation groups, which included AOPA, identified no hazards to these redesigned subdivisions. The redesign added two more restricted area subdivisions simplifying the design, while reducing the overall size of the R-2205 A through K complex in response to other comments discussed later in this document.
AOPA and APSC commented on the availability of the Trans-Alaskan Pipeline to be available for inspection and aerial security patrols for Alaska's transportation infrastructure. The proposal would include the route over the pipeline.
The FAA agrees and has adjusted the southwest boundary of the restricted
The FAA agrees with AOPA and has adjusted the northwest boundary of the restricted area complex (R-2205 B) to allow the VFR corridor free access and two miles of maneuverability from the restricted area on either side of the Chena river valley.
In the NPRM, the FAA acknowledged that the proposed R-2205A, B, C, D, E, F, G, H, J, and K restricted areas, if established, would be designated within the existing Viper A, Viper B, and Yukon 1 Military Operations Areas (MOAs). To address potential airspace issues and confusion created if all special use airspace (SUA) areas were active at the same time, the FAA stated it would amend the legal descriptions of the Viper A, Viper B and Yukon 1 MOAs to exclude that airspace within R-2205A, B, C, D, E, F, G, H, J, and K when the restricted areas were activated.
MOAs are established to separate or segregate non-hazardous military flight activities from aircraft operating in accordance with instrument flight rules (IFR) and to advise pilots flying under visual flight rules (VFR) where these activities are conducted. IFR aircraft may be routed through an active MOA only by agreement with the using agency and only when air traffic control can provide approved separation from the MOA activity. VFR pilots are not restricted from flying in an active MOA but are advised to exercise caution while doing so. MOAs are nonregulatory airspace areas that are established or amended administratively and published in the National Flight Data Digest (NFDD) rather than through rulemaking procedures. When a nonrulemaking action is ancillary to a rulemaking action, FAA procedures allow for the nonrulemaking changes to be included in the rulemaking action. Since amendments to the Viper A, Viper B, and Yukon 1 MOAs descriptions are ancillary to the establishment of R-2205A through K, the MOA changes are addressed in this rule as well as being published in the NFDD.
The FAA circularized a proposal to make editorial amendments to the Viper A, Viper B, and Yukon 1 MOAs boundary descriptions, contingent upon restricted areas R-2205A through K being established, to add language that excluded that airspace within R-2205A through K when the restricted areas were activated. Interested parties were invited to participate in this proposed nonrulemaking action by submitting written comments on the proposal. No comments to the circular were received. As a result, the Viper A, Viper B, and Yukon 1 MOAs boundary descriptions are being amended to include language that excludes that airspace within restricted areas R-2205A through K when they are activated. These editorial amendments overcome any potential airspace confusion or conflict resulting from the overlapping restricted areas and MOAs being activated at the same time. Additionally, the amendments help inform nonparticipants when portions of the MOAs are not available due to hazardous activities being conducted in the overlapping restricted areas. The amended boundary descriptions for the MOAs will be published in the NFDD; the rest of the MOAs legal descriptions remain unchanged.
In response to comments the FAA has realigned all internal subdivisions into smaller rectangle subdivisions instead of large 45-degree slanted subdivisions with irregular boundaries. Additionally, two subdivisions have been added while the overall size of the R-2205 A through K complex is reduced. All geographic lat./long. coordinates have been adjusted to accommodate traffic above and around the newly established restricted areas ensuring ample separation from non-participating traffic.
This action amends Title 14 Code of Federal Regulations (14CFR) part 73 by removing the current restricted area R-2205, Stuart Creek, AK, and establishing restricted areas R-2205A through K, Fairbanks, AK. The FAA is revoking and establishing this action at the request of the United States Army in Alaska. Subsequent to the NPRM, the FAA is also incorporating the restricted area updates noted in the Differences from the NPRM section. The FAA is taking this action to accommodate manned and unmanned teaming of aviation assets and allow Air-to-Ground Integration (AGI) during large training exercises such as Red Flag and Distant Frontier. Additionally, the expansion of the restricted area over the DMPTR allows for greater training complexity by incorporating AGI. The activities within R-2205 A through K are to meet the overall training objectives of the Department of Defense. The activities would include live and inert precision and unguided munitions, unmanned aerial vehicles (UAV) laser operations, joint combined arms live fire exercises, gunnery collective skills training, demolitions, indirect fire and helicopter integration with UAVs. These restricted areas are required to effectively deconflict Department of Defense and civilian air traffic from hazards associated with live fire training.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action of establishing restricted areas R-2205 A, B, C, D, E, F, G, H, J, K; Fairbanks, AK and revoking restricted area R-2205 at Stuart Creek, AK, qualifies for FAA adoption in accordance with FAA Order 1050.1F, paragraph 8-2,
Based on the evaluation in the Army's EIS, the FAA, as a Cooperating Agency, concluded that the EIS qualifies for adoption by FAA, and that the FAA's adoption is authorized in accordance with 40 CFR 1506.3,
Airspace, Prohibited Areas, Restricted Areas.
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Boundaries—Beginning at lat. 64°43′40″ N, long. 146°59′27″ W; clockwise along the 4.7-mile radius of Eielson AFB; to lat. 64°37′50″ N, long. 146°56′19″ W; to lat. 64°39′41″ N, long. 146°56′23″ W; to lat. 64°39′41″ N, long. 146°57′24″ W; to lat. 64°40′07″ N, long. 146°57′24″ W; to lat. 64°40′07″ N, long. 147°00′26″ W; to lat. 64°41′25″ N, long. 147°00′26″ W; to lat. 64°41′25″ N, long. 147°02′23″ W; to lat. 64°43′35″ N, long. 147°02′23″ W; to lat. 64°43′35″ N, long. 146°59′26″ W; to the point of beginning.
Boundaries—Beginning at lat. 64°37′40″ N, long. 146°41′10″ W; to lat. 64°33′38″ N, long. 146°41′13″ W; to lat. 64°33′38″ N, long. 146°45′18″ W; to lat. 64°33′51″ N, long. 146°45′18″ W; to lat. 64°35′09″ N, long. 146°51′22″ W; to lat. 64°36′54″ N, long. 146°54′14″ W; to lat. 64°37′50″ N, long. 146°56′19″ W; to the point of beginning.
Boundaries—Beginning at lat. 64°48′47″ N, long. 146°41′03″ W; to lat. 64°37′40″ N, long. 146°41′10″ W; to lat. 64°37′50″ N, long. 146°56′19″ W; counter-clockwise along the 47-mile radius of Eielson AFB; to lat. 64°43′40″ N, long. 146°59′27″ W; to lat. 64°47′54″ N, long. 146°59′25″ W; to lat. 64°48′47″ N, long. 146°57′08″ W; to the point of beginning.
Controlling agency. FAA, Fairbanks Approach Control.
Federal Aviation Administration (FAA), DOT.
Final rule.
This action establishes restricted areas R-2201A, R-2201B, R-2201C, and R-2201D; Fort Greely, AK, on behalf of by the United States Army Alaska (USARAK), over the Battle Area Complex (BAX) and Combined Arms Collective Training Facility (CACTF), in the vicinity of Allen Army Airfield, AK. The restricted areas contain hazardous activities and will be available for joint military use, including active, National Guard and Reserve elements.
Effective date 0901 UTC, October 10, 2019.
Kenneth Ready, Airspace Policy and Regulations Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes restricted areas at Fort Greely, AK, to support the United States Army in Alaska and to accommodate essential joint training requirements.
The FAA published a notice of proposed rulemaking for Docket No. FAA-2016-9495 in the
Interested parties were invited to participate in this rulemaking effort by submitting written comments on the supplemental NPRM proposal. Two substantive comments were received from the Aircraft Owners and Pilots Association (AOPA).
The FAA received two comments to the SNPRM. An individual did not address the proposal however, commented on surrounding military operations areas that are outside the scope of this action. AOPAs comments focused on two main areas of concern: Letter of Agreement/Procedure (LOA/LOP) mitigations for general aviation aircraft and the establishment date should be effective with the VFR sectional. Having considered the issues and recommendations provided by AOPA, the FAA offers the following responses.
AOPA stated, “The SNPRM notes that the Letters of Agreement/Procedure (LOA/LOP) between the controlling agency and the using agency will offer additional mitigations and access to the Restricted Area. AOPA requests that the FAA articulate those procedures and mitigations in the Final Rule to allow General Aviation pilots to be aware of this operational flexibility. This includes understanding how FAA will coordinate to facilitate IFR and VFR access, and the procedures to let civil aircraft operating VFR know how to contact a military range controller for real-time access around actual military use.”
The FAA responds that the capability for immediate communications with Anchorage Air Route Traffic Control Center (ARTCC) and Allen Army Airfield will be included in a LOP. Under the LOP, upon receipt of “check fire” or “stop fire” instruction from an air traffic control authority, the using agency will immediately suspend hazardous activities in all segments of the restricted area. Additionally, upon confirming all hazardous activities have ceased, the using agency will inform the controlling agency (and Allen Army Airfield, if operating). The using agency will not resume hazardous activities until after receipt of a “start fire” authorization from Allen Army Airfield/Anchorage ARTCC. The using agency will release segments of R-2201 to the controlling agency when use for designated activities is not anticipated for one or more hours, or when training is complete. The using agency shall ensure the status of R-2201 is accurate and current for broadcasts on the Special Use Airspace Information System (SUAIS). SUAIS is the known standard for civil VFR pilots to inquire about active military airspace. Additionally, civil VFR aircraft can request flight following to assist with real time access to the restricted areas.
AOPA requested the activation of the new restricted areas should occur concurrently or after the charting of the airspace on the Sectional Charts.
The FAA concurs with AOPA and will make the new restricted areas effective in accordance with guidance to the chart on the 56-day cycle, which is October 10, 2019. However, the FAA has mandated to the using agency the
This action amends Title 14 Code of Federal Regulations (14 CFR) part 73 by establishing restricted areas R-2201A, B, C, and D; Fort Greely, AK. Restricted areas R-2201A and R-2201C overlie the Combined Arms Collective Training Facility (CACTF), and R-2201B and R-2201D overlie the Battle Area Complex (BAX).
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action of establishing restricted areas R-2201A, R-2201B, R-2201C, and R-2201D at Fort Greely, AK qualifies for FAA adoption in accordance with FAA Order 1050.1F, paragraph 8-2,
Based on the evaluation in the Army's EIS, the FAA, as a Cooperating Agency, concluded that the EIS qualifies for adoption by FAA, and that the FAA's adoption is authorized in accordance with 40 CFR 1506.3,
Airspace, Prohibited Areas, Restricted Areas.
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
Securities and Exchange Commission.
Final rule; technical correction.
This document makes technical corrections to certain amendments to the Commission's disclosure rules and forms adopted in Release No. 33-10618 (March 20, 2019), which was published in the
Effective August 13, 2019.
Charles Kwon, Office of Rulemaking, Division of Corporation Finance, at (202) 551-3430, or Michael C. Pawluk, Investment Company Rulemaking Office, Division of Investment Management, at (202) 551-6792, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549.
We are making technical corrections to:
Reporting and recordkeeping requirements, Securities.
For the reasons set out above, we are amending title 17, chapter II of the Code of Federal Regulations as follows:
15 U.S.C. 77e, 77f, 77g, 77h, 77j, 77k, 77s, 77z-2, 77z-3, 77aa(25), 77aa(26), 77ddd, 77eee, 77ggg, 77hhh, 77iii, 77jjj, 77nnn, 77sss, 78c, 78i, 78j, 78j-3, 78
15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s(a), 77z-3, 77sss(a), 78c(b), 78
15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s, 77z-2, 77z-3, 77sss, 78c, 78
The text of Form S-1 does not, and this amendment will not, appear in the Code of Federal Regulations.
3. * * *
After completing its review of the supplemental information, the Commission or its staff will return or destroy it at the request of the registrant, if the registrant complies with the procedures outlined in Rule 418 (§ 230.418 of this chapter).
* * * Notwithstanding the foregoing, in the financial statements, incorporating by reference or cross-referencing to information outside of the financial statements is not permitted unless otherwise specifically permitted or required by the Commission's rules or by U.S. Generally Accepted Accounting Principles or International Financial Reporting Standards as issued by the International Accounting Standards Board, whichever is applicable. * * *
3. * * *
* * * After completing its review of the supplemental information, the Commission or its staff will return or destroy it at the request of the registrant, if the registrant complies with the procedures outlined in Rule 418 (§ 230.418 of this chapter).
Set forth on the inside front cover page of the prospectus or, where permitted, on the outside back cover page, the information required by Item 502 of Regulation S-K (17 CFR 229.502).
Furnish the information required by Items 105 and 503 of Regulation S-K (17 CFR 229.105 and 17 CFR 229.503) and Item 1103 of Regulation AB (17 CFR 229.1103).
Set forth on the inside front cover page of the prospectus or, where permitted, on the outside back cover
Furnish the information required by Items 105 and 503 of Regulation S-K (17 CFR 229.105 and 17 CFR 229.503) and Item 1103 of Regulation AB (17 CFR 229.1103).
15 U.S.C. 78a
D. * * *
(2) * * *
(d) Exchange Act Rule 12b-23 (17 CFR 240.12b-23) (additional rule on incorporation by reference for reports filed pursuant to Sections 13 and 15(d) of the Act).
15 U.S.C. 77f, 77g, 77h, 77j, 77s, 78c(b), 78
The text of Form N-5 does not, and this amendment will not, appear in the Code of Federal Regulations.
3. * * *
* * * After completing its review of the supplemental information, the Commission or its staff will return or destroy it at the request of the registrant, if the registrant complies with the procedures outlined in Rule 418 (§ 230.418 of this chapter).
4. * * *
* * * After completing its review of the supplemental information, the Commission or its staff will return or destroy it at the request of the registrant, if the registrant complies with the procedures outlined in Rule 418 (§ 230.418 of this chapter).
2. Exhibits:
6. * * *
* * * After completing its review of the supplemental information, the Commission or its staff will return or destroy it at the request of the registrant, if the registrant complies with the procedures outlined in Rule 418 (§ 230.418 of this chapter).
(b) Exhibits:
5. * * *
* * * After completing its review of the supplemental information, the Commission or its staff will return or destroy it at the request of the registrant, if the registrant complies with the procedures outlined in Rule 418 (§ 230.418 of this chapter).
(b) Exhibits:
5. * * *
* * * After completing its review of the supplemental information, the
3. * * *
* * * After completing its review of the supplemental information, the Commission or its staff will return or destroy it at the request of the registrant, if the registrant complies with the procedures outlined in Rule 418 (§ 230.418 of this chapter).
3. * * *
* * * After completing its review of the supplemental information, the Commission or its staff will return or destroy it at the request of the registrant, if the registrant complies with the procedures outlined in Rule 418 (§ 230.418 of this chapter).
Defense Contract Audit Agency, DoD. ACTION: Final rule. SUMMARY: This final rule removes DoD's regulation concerning the Defense Contract Audit Agency (DCAA) Privacy Program. On April 11, 2019, the Department of Defense published a revised DoD-level Privacy Program rule, which contains the necessary information for an agency-wide privacy program regulation under the Privacy Act and now serves as the single Privacy Program rule for the Department. That revised Privacy Program rule also includes all DoD component exemption rules. Therefore, this part is now unnecessary and may be removed from the CFR.
This rule is effective on August 13, 2019.
Keith Mastromichalis, 571-448-3153.
DoD now has a single DoD-level Privacy Program rule at 32 CFR part 310 (84 FR 14728) that contains all the codified information required for the Department. The DCAA Privacy Act Program regulation at 32 CFR part 317, last updated on March 10, 2015 (80 FR 12559), is no longer required and can be removed.
It has been determined that publication of this CFR part removal for public comment is impracticable, unnecessary, and contrary to public interest since it is based on the removal of policies and procedures that are either now reflected in another CFR part, 32 CFR 310, or are publicly available on the Department's website. To the extent that DCAA internal guidance concerning the implementation of the Privacy Act within DCAA is necessary, it will continue to be published in “The Privacy Act, an Employee Guide to Privacy,” available at
This rule is one of 20 separate component Privacy rules. With the finalization of the DoD-level Privacy rule at 32 CFR part 310, the Department eliminated the need for this component Privacy rule, thereby reducing costs to the public as explained in the preamble of the DoD-level Privacy rule published on April 11, 2019, at 84 FR 14728-14811.
This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review.” Therefore, E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs” does not apply.
Privacy.
Coast Guard, DHS.
Final rule.
The Coast Guard is issuing this final rule to adjust the limits of liability for vessels, deepwater ports, and onshore facilities under the Oil Pollution Act of 1990 (OPA 90), as amended, to reflect the increase in the Consumer Price Index since 2015. These regulatory inflation increases to the limits of liability are required by OPA 90 and are necessary to preserve the deterrent effect and “polluter pays” principle embodied in the Act. This update promotes the Coast Guard's missions of maritime safety and stewardship.
This final rule is effective on November 12, 2019.
Documents mentioned in this rule are available in our online
For information about this document call or email Benjamin White, Coast Guard; telephone (202) 795-6066, email
Under the Oil Pollution Act of 1990 (OPA 90) (33 U.S.C. 2701,
In the instances when a limit of liability applies, the Oil Spill Liability Trust Fund (“the Fund”) is available to compensate the OPA 90 removal costs and damages incurred by the responsible parties and third-party claimants in excess of the applicable limit of liability. The statutory limits of liability for vessels and three types of facilities are set forth in OPA 90: (1) Onshore facilities, (2) deepwater ports, and (3) offshore facilities other than deepwater ports. In addition, to prevent the real value of the OPA 90 statutory limits of liability from depreciating over time as a result of inflation, and to preserve the “polluter pays” principle, OPA 90 requires that the limits of liability be adjusted “not less than every 3 years” to reflect significant increases in the Consumer Price Index (CPI).
The Coast Guard is responsible for adjusting the limits of liability for vessels, deepwater ports, and onshore facilities. The Department of the Interior's Bureau of Ocean Energy Management (BOEM) is responsible for adjusting the limits of liability for offshore facilities. Regarding vessels and deepwater ports, the Coast Guard adjusted the limits of liability in 2009 (74 FR 31357)
The Coast Guard is promulgating this rule pursuant to the provisions of Title I of OPA, Executive Order 12777, as amended, and Coast Guard regulations in Title 33 of the Code of Federal Regulations (CFR) part 138, subpart B—OPA 90 Limits of Liability (Vessels, Deepwater Ports and Onshore Facilities). Under 5 U.S.C. 553(b)(B), the Coast Guard has good cause for issuing this final rule without notice or comment as providing notice and comment is unnecessary. Prior notice and comment is “unnecessary” when the change is minor or merely technical.
The Coast Guard is issuing this final rule to update the OPA 90 limits of liability for vessels, deepwater ports, and onshore facilities, as set forth in 33 CFR part 138, subpart B, to reflect significant increases in the CPI since the limits were last adjusted. OPA 90 requires adjustments to the limits of liability not less than every 3 years to reflect significant increases in the CPI. The method for calculating these adjustments is set forth in 33 CFR 138.240.
This final rule provides these periodic inflation adjustments to the limits of liability to reflect changes in the CPI since the limits were last adjusted for inflation in 2015 (80 FR 72342). As provided in 33 CFR 138.240, we
1. Formula to calculate the percent change in the Annual CPI-U: Percent change in the Annual CPI-U = [(Annual CPI-U for current period − Annual CPI-U for previous period) ÷ Annual CPI-U for previous period] × 100, then rounded to one decimal place.
2. Formula to derive the new limit of liability, applying the percent change in the Annual CPI-U: New Limit of Liability = Previous Limit of Liability + (Previous Limit of Liability × Percent Change in CPI), then rounded to the closest $100.
For this update, we used the 2018 Annual CPI-U value of 251.107 as the “current period” value, which is the most recent Annual CPI-U published by the BLS.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. A summary of our analyses based on these statutes or Executive orders follows.
Executive Orders 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 13771 (Reducing Regulation and Controlling
The Office of Management and Budget (OMB) has not designated this rule a significant regulatory action under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. Because this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771.
As was the case with the BOEM rulemaking increasing the limits of liability for offshore facilities, this final rule is an update to the limit of liability for vessels, deepwater ports, and onshore facilities under OPA 90.
This final rule increases the limits of liability under OPA 90 for vessels, deepwater ports, and onshore facilities by 6.1 percent. The Coast Guard does not expect Certificate of Financial Responsibility guarantor insurance premiums for vessels to increase as a result of this rule. This final rule will only affect vessels, deepwater ports, and onshore facilities that have an OPA 90 incident that exceeds their existing limit of liability. The Coast Guard estimates that this final rule will affect, at most, three vessels per year. We estimate that the rule could also affect one deepwater port and one onshore facility over a 10-year period. In such a case, the maximum amount of additional liability will represent a maintenance of the value of the limits of liability set by OPA 90.
This rulemaking ensures that the OPA 90 limits of liability keep pace with inflation as required by OPA 90 (33 U.S.C. 2704(d)(4)). This final rule requires responsible parties to internalize inflation, thereby benefitting the public, because the appropriate amount of removal costs and damages are borne by the responsible party. The liability risk will not shift from the responsible party to the public and the Fund. This helps preserve the “polluter pays” principle as intended by Congress and preserves the Fund for its other authorized uses. Absent CPI adjustments, a responsible party gains an advantage not intended by OPA 90. Without inflation incorporated into the determination of the applicable limit of liability, the responsible party ultimately pays a reduced percentage of the total incident costs. Hence, this final rule ensures that the limits of liability are adjusted according to inflation and remain constant over time.
Under the Regulatory Flexibility Act, 5 U.S.C. 601-612, we have considered whether this rule will have a significant economic impact on a substantial number of small entities. 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 Regulatory Flexibility Act does not apply when notice and comment rulemaking is not required. This rule is not preceded by a notice of proposed rulemaking (NPRM). Therefore, it is exempt from the requirements of the Regulatory Flexibility Act (5 U.S.C. 601-612). Furthermore, this rulemaking is statutorily mandated. Pursuant to established procedure in 33 CFR 138.240(a), an NPRM is unnecessary. Therefore, the Coast Guard has determined that a Regulatory Flexibility Analysis does not apply to this rulemaking.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, we offer to assist small entities in understanding this rule so that they can better evaluate its effects on them and participate in the rulemaking. 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.
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 Paperwork Reduction Act of 1995, (44 U.S.C. 3501-3520) requires that the Coast Guard consider the impact of paperwork and other information collection burdens imposed on the public. The Coast Guard had determined that there is no new requirement for information collection associated with this final rule.
A rule has implications for federalism under Executive Order 13132 (Federalism) if it has 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. We have analyzed this rule under Executive Order 13132 and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
This final rule makes necessary adjustments to the OPA 90 limits of liability to reflect significant increases in the CPI. Nothing in this final rule affects the preservation of State authorities under 33 U.S.C. 2718, including the authority of any State to impose additional liability or financial responsibility requirements with respect to discharges of oil within such State. Therefore, this final rule has no implications for federalism.
The Coast Guard recognizes the key role that State and local governments may have in making regulatory determinations. Additionally, for rules with federalism implications and preemptive effect, Executive Order 13132 specifically directs agencies to consult with State and local governments during the rulemaking process. The Coast Guard invites anyone who believes this rule has implications for federalism under Executive Order 13132 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
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 will not create an environmental risk to health or risk to safety that might disproportionately affect children.
This rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments), because it will not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
We have analyzed this final rule under Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.
The National Technology Transfer and Advancement Act, codified as a note to 15 U.S.C. 272, directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This final rule is categorically excluded under paragraph L53 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. Paragraph L53 pertains to congressionally mandated regulations designed to improve or protect the environment. This rule adjusts the limits of liability for vessels, deepwater ports, and onshore facilities to reflect significant increases in the CPI using the methodology established in 33 CFR 138.40(a) and mandated by statute. The Coast Guard certifies this rule will not have significant environmental impacts.
Hazardous materials transportation, Insurance, Oil pollution, Reporting and recordkeeping requirements, Surety bonds, Vessels, Water pollution control.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 138 as follows:
33 U.S.C. 2704, 2716, 2716a; 42 U.S.C. 9608, 9609; 6 U.S.C. 552; E.O. 12580, Sec. 7(b), 3 CFR, 1987 Comp., p. 193; E.O. 12777, Secs. 4 and 5, 3 CFR, 1991 Comp., p. 351, as amended by E.O. 13286, Sec. 89, 3 CFR, 2004 Comp., p. 166, and by E.O. 13638, Sec. 1, 3 CFR, 2014 Comp., p.227; Department of Homeland Security Delegation Nos. 0170.1 and 5110, Revision 01. Section 138.30 also issued under the authority of 46 U.S.C. 2103 and 14302.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone for
This regulation is effective from 8:30 p.m. until 9:15 p.m. on August 17, 2019.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions about this rule, call or email MSTC Allie Lee, Waterways Department, Marine Safety Unit Toledo, Coast Guard; telephone (419) 418-6023, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the event sponsor notified the Coast Guard with insufficient time to accommodate the comment period. Thus, delaying the effective date of this rule to wait for the comment period to run would be impracticable and contrary to the public interest because it would prevent the Captain of the Port Detroit from keeping the public safe from the hazards associated with a maritime fireworks displays.
Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 46 U.S.C. 70034 (previously 33 U.S.C. 1231). The Captain of the Port Detroit (COTP) has determined that potential hazards associated with fireworks displays will be a safety concern for anyone within a 250 foot radius of the launch site. The likely combination of recreational vessels, darkness punctuated by bright flashes of light, and fireworks debris falling into the water presents risks of collisions which could result in serious injuries or fatalities. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the fireworks display.
This rule establishes a safety zone that will be enforced from 8:30 p.m. until 9:15 p.m. on August 17, 2019. The safety zone will encompass all U.S. navigable waters of the Maumee River within a 250 foot radius of the fireworks launch site located at position 41°35′38″ N 083°35′48.6″ W. All geographic coordinates are North American Datum of 1983 (NAD 83).
The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the fireworks display. Entry into, transiting, or anchoring within the safety zone is prohibited unless authorized by the Captain of the Port, Sector Detroit or his designated representative. The Captain of the Port, Sector Detroit or his designated representative may be contacted via VHF Channel 16. The regulatory text appears at the end of this document.
We developed this rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, this rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, and duration of the safety zone. Vessel traffic will be able to safely transit around this safety zone which would impact a small designated area of the Maumee River for a period of 45 minutes during the evening when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities. While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture
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 have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting only 45 minutes that will prohibit entry within 250 foot radius of where the fireworks display will be conducted. It is categorically excluded from further review under paragraph L[60](a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Detroit or his designated representative.
(3) The “designated representative” of the Captain of the Port Detroit is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port Detroit to act on his behalf. The designated representative of the Captain of the Port Detroit will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port Detroit or his designated representative may be contacted via VHF Channel 16.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Detroit or his designated representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Detroit or his designated representative.
Environmental Protection Agency (EPA).
Partial withdrawal of direct final rule.
The Environmental Protection Agency (EPA) is withdrawing a portion of a direct final rule published on June
Effective August 13, 2019, the EPA withdraws amendatory instruction 2 from the direct final rule published on June 6, 2019, at 84 FR 26349.
Carrie Paige, EPA Region 6 Office, 214-665-6521,
Throughout this document “we,” “us,” and “our” means the EPA. On June 6, 2019, we published a direct final rule to approve revisions to the Texas SIP to remove two rules from the Texas SIP. The revisions remove 30 TAC 114, Subchapter B (the Motor Vehicle Anti-tampering Requirements) in its entirety; and 30 TAC 114, Section 114.86 (the LIRAP for Participating Early Action Compact (EAC) Counties) from the SIP (
Environmental protection, Air pollution control, Incorporation by reference, Ozone, Volatile organic compounds.
Environmental Protection Agency (EPA).
Notification of approval.
On May 10, 2016, EPA revised the maximum permit term for Municipal Solid Waste Landfills (MSWLF) units operating under Research, Development and Demonstration (RD&D) permits. The revision allows states to increase the number of RD&D permit renewals issued to six, 3-year permit renewals, for a total permit term of up to 21 years. On May 6, 2019, Wisconsin Department of Natural Resources (WDNR) submitted a notification to EPA Region 5 seeking Federal approval of its revised RD&D requirements per the procedures in Requirements for State Permit Program Determination of Adequacy. Subject to public review and comment, this document approves Wisconsin's revised RD&D permit requirements.
This determination of adequacy of the RD&D permit program for Wisconsin are
Submit your comments, identified by Docket ID No. EPA-R05-RCRA-2019-0319, by one of the following methods:
•
•
•
Julie Schilf, U.S. EPA Region 5, Land, Chemicals and Redevelopment Division, 77 West Jackson Boulevard LM-16J, Chicago, Illinois 60604, (312) 886-0407,
On March 22, 2004, EPA issued a final rule amending the MSWLF criteria in 40 CFR 258 to allow for RD&D permits (69 FR 13242). This rule allows for variances from specified criteria for a limited period of time, to be implemented through state-issued RD&D permits. RD&D permits are available only in states with approved MSWLF permit programs that have been modified to incorporate RD&D permit authority. On May 10, 2016, EPA revised the maximum permit term for MSWLF units operating under RD&D permits (81 FR 28720). The revision allows states to increase the number of RD&D permit renewals issued to six, 3-year permit renewals, for a total permit term of up to 21 years (40 CFR 258.4). While states are not required to incorporate this new provision, those states interested in providing RD&D permits must seek approval from EPA before issuing such permits. On January 10, 2006, Wisconsin received EPA approval of its RD&D permit program (71 FR 3293). On May 6, 2019, WDNR submitted a notification to EPA Region 5 seeking Federal approval of its revised RD&D requirements per the procedures in 40 CFR 239.12. Wisconsin's revised RD&D provisions can be found in
EPA has made a determination that the Wisconsin RD&D permit provisions in Chapter NR 514 of the Wisconsin Administrative Code, as amended, comply with the Federal criteria set forth in 40 CFR 258.4.
This action is issued under the authority of Sections 2002, 4005 and 4010(c) of the Solid Waste Disposal Act, as amended, 40 U.S.C. 6912, 6945 and 6949(a).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure of the General category June through August fishery for 2019.
NMFS closes the General category fishery for large medium and giant (
Effective 11:30 p.m., local time, August 9, 2019, through August 31, 2019.
Brad McHale, 978-281-9260, or Larry Redd, 301-420-8503.
Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971
NMFS is required, under § 635.28(a)(1), to file a closure notice with the Office of the Federal Register for publication when a BFT quota (or subquota) is reached or is projected to be reached. On and after the effective date and time of such notification, for the remainder of the fishing year or for a specified period as indicated in the notification, retaining, possessing, or landing BFT under that quota category is prohibited until the opening of the subsequent quota period or until such date as specified in the notice.
The 2019 base quota for the General category is 555.7 mt. See § 635.27(a). Each of the General category time periods (January, June through August, September, October through November, and December) is allocated a subquota or portion of the annual General category quota. The baseline subquotas for each time period are as follows: 29.5 mt for January; 277.9 mt for June through August; 147.3 mt for September; 72.2 mt for October through November; and 28.9 mt for December. We previously adjusted the January subquota upwards to 100 mt through three inseason quota transfers (83 FR 67140, December 28, 2018; 84 FR 3724, February 13, 2019; and 84 FR 6701, February 28, 2019) (although it is called the “January” subquota, the regulations currently allow landings to continue until the subquota is reached, or until March 31, whichever comes first).
Based on the best available landings information for the General category BFT fishery, NMFS has determined that the June through August subquota of 277.9 mt is projected to be reached soon. As of August 6, reported landings total approximately 246 mt, and average catch rates are approximately 9.4 mt/day. Therefore the General category fishery should be closed to avoid exceeding the subquota. This action applies to Atlantic tunas General category (commercial) permitted vessels and HMS Charter/Headboat category permitted vessels with a commercial sale endorsement when fishing commercially for BFT and is taken consistent with the regulations at § 635.28(a)(1). Retaining, possessing, or landing large medium or giant BFT by persons aboard vessels permitted in the Atlantic tunas General category and HMS Charter/Headboat category (while fishing commercially) must cease at 11:30 p.m. local time on August 9, 2019. The General category will reopen automatically on September 1, 2019, for the September 2019 subperiod. The intent of this closure is to prevent overharvest of the June through August subquota.
Fishermen may catch and release (or tag and release) BFT of all sizes, subject to the requirements of the catch-and-release and tag-and-release programs at § 635.26. All BFT that are released must be handled in a manner that will maximize their survival, and without removing the fish from the water, consistent with requirements at § 635.21(a)(1). For additional information on safe handling, see the “Careful Catch and Release” brochure available at
NMFS will continue to monitor the BFT fisheries closely. Dealers are required to submit landing reports within 24 hours of a dealer receiving BFT. Late reporting by dealers compromises NMFS' ability to timely implement actions such as quota and retention limit adjustment, as well as closures, and may result in enforcement actions. Additionally, and separate from the dealer reporting requirement, General and HMS Charter/Headboat category vessel owners are required to report the catch of all BFT retained or discarded dead within 24 hours of the landing(s) or end of each trip, by accessing
Depending on the level of fishing effort and catch rates of BFT, NMFS may determine that additional adjustments are necessary to ensure available subquotas are not exceeded or to enhance scientific data collection from, and fishing opportunities in, all geographic areas. If needed, subsequent adjustments will be published in the
The Assistant Administrator for NMFS (AA) finds that it is impracticable
The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments and fishery closures to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. These fisheries are currently underway, and delaying this action would be contrary to the public interest as it could result in BFT landings exceeding the June through August subquota, which could result in the need to reduce quota for the General category later in the year and thus could affect later fishing opportunities. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.
This action is being taken under 50 CFR 635.28(a)(1) (BFT fishery closures), and is exempt from review under Executive Order 12866.
16 U.S.C. 971
Office of Energy Efficiency and Renewable Energy, Department of Energy.
Request for information.
The U.S. Department of Energy (“DOE”) is initiating an effort to determine whether to amend the current energy conservation standards for microwave ovens. Under the Energy Policy and Conservation Act of 1975, as amended, DOE must review these standards at least once every six years and publish either a notice of proposed rulemaking (“NOPR”) to propose new standards for microwave ovens or a notice of determination that the existing standards do not need to be amended. This request for information (“RFI”) solicits information from the public to help DOE determine whether amended standards for microwave ovens would result in significant energy savings and whether such standards would be technologically feasible and economically justified. DOE welcomes written comments from the public on any subject within the scope of this document (including topics not raised in this RFI).
Written comments and information are requested and will be accepted on or before September 27, 2019.
Interested persons are encouraged to submit comments using the Federal eRulemaking Portal at
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No telefacsimilies (faxes) will be accepted. For detailed instructions on submitting comments and additional information on this process, see section III of this document.
The docket web page can be found at
Dr. Stephanie Johnson, U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 287-1943. Email:
Ms. Celia Sher, U.S. Department of Energy, Office of the General Counsel, GC-33, 1000 Independence Avenue SW, Washington, DC 20585-0121. Telephone: (202) 287-6122. Email:
For further information on how to submit a comment, or review other public comments and the docket contact the Appliance and Equipment Standards Program staff at (202) 287-1445 or by email:
Microwave ovens are included in the list of “covered products” for which DOE is authorized to establish and amend energy conservation standards and test procedures. (42 U.S.C. 6292(a)(10)) DOE's energy conservation standards for microwave ovens are prescribed at 10 CFR 430.32(j)(3). The following sections discuss DOE's authority to establish and amend energy conservation standards for microwave ovens, as well as relevant background information regarding DOE's consideration of energy conservation standards for this product.
The Energy Policy and Conservation Act of 1975, as amended (“EPCA”),
Under EPCA, DOE's energy conservation program consists essentially of four parts: (1) Testing, (2) labeling, (3) Federal energy conservation standards, and (4) certification and enforcement procedures. Relevant provisions of EPCA specifically include definitions (42 U.S.C. 6291), test procedures (42 U.S.C. 6293), labeling provisions (42 U.S.C. 6294), energy conservation standards (42 U.S.C. 6295), and the authority to require information and reports from manufacturers (42 U.S.C. 6296).
Federal energy efficiency requirements for covered products established under EPCA generally supersede State laws and regulations concerning energy conservation testing, labeling, and standards. (42 U.S.C. 6297(a)-(c)) DOE may, however, grant waivers of Federal preemption in limited instances for particular State laws or regulations, in accordance with the procedures and other provisions set forth under 42 U.S.C. 6297(d).
EPCA prescribed energy conservation standards for kitchen ranges and ovens, and directed DOE to conduct two cycles of rulemakings to determine whether to amend standards for these products. (42 U.S.C. 6295(h)(2)(A)-(B)) DOE completed the first of these rulemaking cycles by publishing a final rule on September 8, 1998, that codified the prescriptive standard established in EPCA,
EPCA also requires that, not later than 6 years after the issuance of any final rule establishing or amending a standard, DOE must publish either a notice of determination that the standards for the product do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(1)) EPCA further provides that, not later than 3 years after the issuance of a final determination not to amend standards, DOE must publish either a notice of determination that standards for the product do not need to be amended, or a NOPR including new proposed energy conservation standards (proceeding to a final rule, as appropriate). (42 U.S.C. 6295(m)(3)(B)) DOE must make the analysis on which the determination is based publicly available and provide an opportunity for written comment. (42 U.S.C. 6295(m)(2)) In making a determination, DOE must evaluate whether more stringent standards would (1) yield a significant savings in energy use and (2) be both technologically feasible and economically justified. (42 U.S.C. 6295(m)(1)(A))
DOE is publishing this RFI to collect data and information to inform its decision consistent with its obligations under EPCA.
DOE must follow specific statutory criteria for prescribing new or amended standards for covered products. EPCA requires that any new or amended energy conservation standard prescribed by the Secretary be designed to achieve the maximum improvement in energy or water efficiency that is technologically feasible and economically justified. (42 U.S.C. 6295(o)(2)(A)) To determine whether a standard is economically justified, EPCA requires that DOE determine whether the benefits of the standard exceed its burdens by considering, to the greatest extent practicable, the following seven factors:
(1) The economic impact of the standard on the manufacturers and consumers of the affected products;
(2) The savings in operating costs throughout the estimated average life of the product compared to any increases in the initial cost, or maintenance expenses;
(3) The total projected amount of energy and water (if applicable) savings likely to result directly from the standard;
(4) Any lessening of the utility or the performance of the products likely to result from the standard;
(5) The impact of any lessening of competition, as determined in writing by the Attorney General, that is likely to result from the standard;
(6) The need for national energy and water conservation; and
(7) Other factors the Secretary of Energy (Secretary) considers relevant. (42 U.S.C. 6295(o)(2)(B)(i)(I)-(VII))
DOE fulfills these and other applicable requirements by conducting a series of analyses throughout the rulemaking process. Table I.1 shows the individual analyses that are performed to satisfy each of the requirements within EPCA.
As detailed throughout this RFI, DOE is publishing this document seeking input and data from interested parties to aid in the development of the technical analyses on which DOE will ultimately rely to determine whether (and if so, how) to amend the standards for microwave ovens.
In the following sections, DOE has identified a variety of issues on which it seeks input to aid in the development of the technical and economic analyses regarding whether amended standards for microwave ovens may be warranted. Additionally, DOE welcomes comments on other issues relevant to the conduct of this rulemaking that may not specifically be identified in this document. In particular, DOE notes that under Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” Executive Branch agencies such as DOE are directed to manage the costs associated with the imposition of expenditures required to comply with Federal regulations. 82 FR 9339. Consistent with that Executive Order, DOE encourages the public to provide input on measures DOE could take to lower the cost of its regulations applicable to microwave ovens while remaining consistent with the requirements of EPCA.
Further, DOE seeks comment on whether there have been sufficient technological or market changes since the most recent standards update that may justify a new rulemaking to consider more stringent standards. Specifically, DOE seeks data and information that could enable the agency to determine whether DOE should propose a “no new standard” determination because a more stringent standard: (1) Would not result in a significant savings of energy; (2) is not technologically feasible; (3) is not economically justified; or (4) any combination of foregoing.
This RFI covers those products that meet the definition of “microwave oven,” as codified at 10 CFR 430.2. The definition for microwave ovens was most recently amended in a test procedure final rule published on January 18, 2013. 78 FR 4015.
Specifically, as codified, “microwave oven” means a category of cooking products which is a household cooking appliance consisting of a compartment designed to cook or heat food by means of microwave energy, including microwave ovens with or without thermal elements designed for surface browning of food and convection microwave ovens. This includes any microwave oven(s) component of a combined cooking product.
Additionally, DOE's regulations at 10 CFR 430.2 define a “convection microwave oven” as a microwave oven that incorporates convection features and any other means of cooking in a single compartment.
For the purpose of the energy conservation standards, further distinction is made as to whether a microwave oven is a “microwave-only oven,” “countertop convection microwave oven,” “built-in microwave oven,” or an “over-the-range convection microwave oven.” 10 CFR 430.32(j)(3). “Built-in” means the product is enclosed in surrounding cabinetry, walls, or other similar structures on at least three sides, and can be supported by surrounding cabinetry or the floor. Section 1.2 of Appendix I. “Microwave-only,” “countertop,” and “over-the-range” are not explicitly defined.
The market and technology assessment that DOE routinely conducts when analyzing the impacts of a potential new or amended energy conservation standard provides
DOE's test procedures for microwave ovens are codified in Appendix I. The test procedure was originally established in an October 3, 1997, final rule that addressed active mode energy use only. 62 FR 51976.
On July 22, 2010, DOE published in the
On March 9, 2011, DOE published an interim final rule establishing test procedures for microwave ovens regarding the measurement of the average standby mode and average off mode power consumption that incorporated by reference specific clauses from the International Electrotechnical Commission (“IEC”) Standard 62301, “Household electrical appliances—Measurement of standby power,” First Edition 2005-06 (“IEC Standard 62301 (First Edition)”). 76 FR 12825. DOE also incorporated definitions of “active mode,” “standby mode,” and “off mode,” as well as language to clarify the application of clauses from IEC Standard 62301 (First Edition) for measuring standby mode and off mode power.
On January 18, 2013, DOE published a final rule amending the microwave oven test procedure to incorporate by reference certain provisions of IEC Standard 62301 Edition 2.0 2011-01, along with clarifying language, for the measurement of standby mode and off mode energy use. 78 FR 4015. DOE also confirmed that the microwave oven portion of a combined product is covered under the definition of “microwave oven” at 10 CFR 430.2, but due to a lack of data and information, did not adopt provisions in the microwave oven test procedure to measure the standby mode and off mode energy use of the microwave portion. 78 FR 4015, 4017.
On December 16, 2016, DOE published a final rule amending the cooking products test procedure to, in part, incorporate methods to calculate the annual standby mode and off mode energy consumption of the microwave oven component of a combined cooking product by allocating a portion of the combined low-power mode energy consumption measured for the combined cooking product to the microwave oven component using the estimated annual cooking hours for the given components comprising the combined cooking product. 81 FR 91418, 91438-91439 (“December 2016 TP Final Rule”).
On January 18, 2018, DOE published an RFI (the “January 2018 TP RFI”) soliciting comment from interested parties on issues related to the microwave oven test procedure to determine whether amendments to the test procedure are warranted. In the January 2018 TP RFI, DOE identified issues related to the measurement of active mode, standby mode, and off mode energy use. 83 FR 02566. If DOE determines that amendments to the microwave oven test procedure are warranted, it would conduct any analysis for the standards rulemaking based on the amended test procedure.
While there is currently no active mode test procedure for microwave ovens, DOE may consider an active mode test in the future. If DOE develops an active mode test procedure for microwave ovens, it must incorporate active mode, standby mode, and off mode energy use into a single integrated energy use metric, unless it is technically infeasible to do so, as required by EPCA. (42 U.S.C. 6295(gg)(2)(A)) If an integrated test procedure is technically infeasible, DOE must prescribe separate active mode, standby mode and off mode energy use test procedures, if separate tests are technically feasible. (
When evaluating and establishing energy conservation standards, DOE may divide covered products into product classes by the type of energy used, or by capacity or other performance-related features that justify a different standard. (42 U.S.C. 6295(q)) In making a determination whether capacity or another performance-related feature justifies a different standard, DOE must consider such factors as the utility of the feature to the consumer and other factors DOE deems appropriate. (
For microwave ovens, the current energy conservation standards specified in 10 CFR 430.32(j)(3) are based on two product classes determined according to the following performance-related features that provide utility to the consumer, in terms of locations where the product may be installed and availability of additional cooking functions: Intended installation (
These product classes were established in the June 2013 Final Rule for the purposes of setting energy conservation standards addressing standby mode and off mode energy use, and were determined to be warranted based on their different standby power performances. 78 FR 36316, 36328-36329. DOE noted at the time that if, in the future, DOE considers whether active mode energy conservation standards are warranted, it may consider redefining the product classes according to the utility of performance
As discussed in section II.B.1 of this document, the current microwave oven test procedure in Appendix I includes provisions for measuring power consumption in standby mode and off mode only. DOE may consider in a separate rulemaking whether the microwave oven test procedure in Appendix I should be amended to include energy use in active mode, including the possibility of an integrated energy use metric that would account for energy use in active mode, standby mode, and off mode.
DOE is also aware that new configurations and features may be available for microwave ovens that may not have been available at the time of the last energy conservation standards analysis.
DOE is also aware of the introduction of combined cooking products that incorporate a microwave oven component. As discussed in section II.A of this document, combined cooking products are defined in Appendix I as household cooking appliances that combine a cooking product with other appliance functionality, which may or may not include another cooking product. Combined cooking products that incorporate a microwave oven may include the following products: Microwave ovens with a conventional cooking top, microwave ovens with a conventional oven, and microwave ovens with a conventional range. The microwave oven(s) component of a combined cooking product is considered a covered product under the definition of microwave ovens in 10 CFR 430.2. In the June 2013 Final Rule, DOE noted that the test procedure in Appendix I at that time did not include methods for measuring the standby mode and off mode energy use for the microwave oven portion of a combined cooking product. As a result, DOE determined that the standby power standard levels for microwave ovens adopted in the June 2013 Final Rule do not apply to the microwave portion of combined products. 78 FR 36316, 36328. As discussed in section II.B.1 of this document, DOE amended the cooking products test procedure in Appendix I in the December 2016 TP Final Rule to incorporate methods for calculating the annual standby mode and off mode energy consumption of the microwave oven component of a combined cooking product.
In analyzing the feasibility of potential new or amended energy conservation standards, DOE uses information about existing and past technology options and prototype designs to help identify technologies that manufacturers could use to meet and/or exceed a given set of energy conservation standards under consideration. In consultation with interested parties, DOE intends to develop a list of technologies to consider in its analysis. That analysis will likely include a number of the technology options DOE previously considered during its most recent rulemaking for microwave ovens. A complete list of those prior options appears in Table II.2. DOE notes that in addition to improvements in the technology options identified previously as part of the June 2013 Final Rule, energy savings for microwave-only ovens may be achieved by replacing the typical filament cavity lamps (
The purpose of the screening analysis is to evaluate the technologies that improve product efficiency to determine which technologies will be eliminated from further consideration and which will be passed to the engineering analysis for further consideration.
DOE determines whether to eliminate certain technology options from further consideration based on the following criteria:
(1)
(2)
(3)
(4)
Technology options identified in the technology assessment are evaluated against these criteria using DOE analyses and inputs from interested parties (
Additionally, DOE notes that the four screening criteria do not directly address the propriety status of technology options. DOE only considers potential efficiency levels achieved through the use of proprietary designs in the engineering analysis if they are not part of a unique pathway to achieve that efficiency level (
In the April 2009 Final Rule and June 2013 Final Rule, DOE determined that all of the technology options for active mode and standby mode met the screening criteria. As a result, DOE did not screen out any technology options in the previous rulemaking analyses.
The engineering analysis estimates the cost-efficiency relationship of products at different levels of increased energy efficiency (“efficiency levels”). This relationship serves as the basis for the cost-benefit calculations for consumers, manufacturers, and the Nation. In determining the cost-efficiency relationship, DOE estimates the increase in manufacturer production
DOE historically has used the following three methodologies to generate incremental manufacturing costs and establish efficiency levels (“ELs”) for analysis: (1) The design-option approach, which provides the incremental costs of adding to a baseline model design options that will improve its efficiency; (2) the efficiency-level approach, which provides the relative costs of achieving increases in energy efficiency levels, without regard to the particular design options used to achieve such increases; and (3) the cost-assessment (or reverse engineering) approach, which provides “bottom-up” manufacturing cost assessments for achieving various levels of increased efficiency, based on detailed cost data for parts and material, labor, shipping/packaging, and investment for models that operate at particular efficiency levels.
For each established product class, DOE selects a baseline model as a reference point against which any changes resulting from new or amended energy conservation standards can be measured. The baseline model in each product class represents the characteristics of common or typical products in that class. Typically, a baseline model is one that meets the current minimum energy conservation standards and provides basic consumer utility.
Consistent with this analytical approach, DOE tentatively plans to consider the current minimum energy conservations standards (which are applicable to microwave ovens manufactured on or after June 17, 2016) to establish the baseline efficiency levels for standby power for each product class. The current standards for each product class are based on the maximum allowable average standby power in watts (W). The current standards for microwave ovens are found at 10 CFR 430.32(j)(3) and are presented in Table II.4 of this document.
As discussed in section II.B.1 of this document, DOE may consider in a separate rulemaking whether the microwave oven test procedure in Appendix I should be amended to include energy use in active mode, including the possibility of an integrated energy use metric that would account for energy use in active mode, standby mode, and off mode, which could affect baseline energy efficiency levels.
As part of DOE's analysis, the maximum available efficiency level is the highest efficiency unit currently available on the market. DOE also considers the max-tech efficiency level, which it defines as the level that represents the theoretical maximum possible efficiency if all available design options are incorporated in a model. In many cases, the max-tech efficiency level is not commercially available because it is not economically feasible.
To inform its data collection in this RFI, DOE initially reviewed data in DOE's Compliance Certification Database to evaluate the range of standby power for microwave ovens available on the market.
The microwave oven test procedure in Appendix I specifies that for the microwave oven standby mode and off mode power measurement, if a microwave oven drops from a higher power state to a lower power state, sufficient time is allowed for the microwave oven to reach the lower power state before proceeding with the test measurement. DOE is aware that some microwave ovens available on the market are able to achieve very low standby power levels by incorporating an automatic function that turns off most power-consuming components, such as the clock display, once a period of inactivity has elapsed. DOE also notes that some manufacturers provide instructions for disabling this feature so that features such as the clock display remain on at all times, whereas others do not provide instructions for how to disable the automatic function. In the June 2013 Final Rule, DOE did not adopt energy conservation standards for microwave oven standby power at what was then determined to be the maximum technologically feasible efficiency level, which was based on this automatic power-down functionality, because the reduction in standby power would result in the loss of certain functions that provide utility to consumers, specifically the continuous clock display. 78 FR 36316, 36362.
As discussed, DOE previously determined that energy conservation standards for active mode were not technologically feasible and economically justified. 74 FR 16040, 16087. Also as discussed, DOE repealed the test procedure for microwave ovens as it related to active mode, having determined that the microwave oven test procedure to measure the cooking efficiency did not produce representative and repeatable test results and that DOE was unaware of any test procedures that measured
As described at the beginning of this section, the main outputs of the engineering analysis are cost-efficiency relationships that describe the estimated increases in manufacturer production cost associated with higher-efficiency products for the analyzed product classes. For the April 2009 Final Rule and 2013 Final Rule, DOE developed the cost-efficiency relationships for active mode and standby mode, respectively, by estimating the efficiency improvements and costs associated with incorporating specific design options into the assumed baseline model for each analyzed product class.
To account for manufacturers' non-production costs and profit margin, DOE applies a non-production cost multiplier (the manufacturer markup) to the MPC. The resulting manufacturer selling price (“MSP”) is the price at which the manufacturer distributes a unit into commerce. For the June 2013 Final Rule, DOE used a manufacturer markup of 1.298 for both microwave oven product classes: (1) Microwave-only ovens and countertop convection microwave ovens, and (2) built-in and over-the-range convection microwave ovens.
To carry out the life-cycle cost (“LCC”) and payback period (“PBP”) calculations, DOE needs to determine the cost to the residential consumer of baseline products, and the cost of more-efficient units the consumer would purchase under potential amended standards. By applying a multiplier called a “markup” to the MSP, DOE is able to estimate the residential consumer's price. In generating end-user price inputs for the LCC analysis and national impact analysis (“NIA”), DOE must identify distribution channels (
As part of the rulemaking process, DOE conducts an energy use analysis to identify how products are used by consumers, and thereby determine the energy savings potential of energy efficiency improvements. DOE bases the standby mode energy consumption of microwave ovens on the rated average standby power consumption as determined by the DOE test procedure and would base the active mode energy
In the June 2013 Final Rule, DOE accounted for standby mode energy use by subtracting the microwave oven active mode hours from the total number of hours in the year and multiplying the result by typical standby power consumption.
In the June 2013 Final Rule, DOE excluded repair and maintenance costs from its analysis because there was no evidence that repair and maintenance costs change by efficiency level.
DOE develops shipments forecasts of microwave ovens to calculate the national impacts of potential amended energy conservation standards on energy consumption, net present value (“NPV”), and future manufacturer cash flows. DOE shipments projections are based on available historical data broken out by product class and efficiency. Current sales estimates allow for a more accurate model that captures recent trends in the market.
A table of the types of data requested for 2018 shipments in Issues H.1 and H.2 of this document can be found in Table II.5 of this RFI. Interested parties are also encouraged to provide additional shipments data as may be relevant.
If disaggregated fractions of annual sales are not available at the product type level, DOE requests more aggregated fractions of annual sales at the category level.
The purpose of the NIA is to estimate aggregate impacts of potential efficiency standards at the national level. Impacts reported by DOE include the national energy savings (“NES”) from potential standards and the national net present value (“NPV”) of the total consumer benefits. The NIA considers lifetime impacts of potential standards on microwave ovens shipped in a 30-year period that begins with the expected compliance date for amended standards.
Analyzing impacts of potential amended energy conservation standards for microwave ovens requires a comparison of projected U.S. energy consumption with and without the amended standards. The forecasts contain projections of annual appliance shipments, the annual energy consumption of new microwave ovens, and the purchase price of new microwave ovens.
A key component of DOE's estimates of NES and NPV would be the microwave oven energy efficiency forecasted over time for the no-standards case and each of the potential standards cases. In the June 2013 Final Rule, DOE based projections of no-standards-case shipment-weighted efficiency (“SWEF”) for the microwave oven product classes on growth rates determined from historical data provided by AHAM. 78 FR 36316, 36346. For a potential future rulemaking, DOE would expect to consider recent trends in efficiency and
The purpose of the manufacturer impact analysis (“MIA”) is to estimate the financial impact of amended energy conservation standards on manufacturers of microwave ovens, and to evaluate the potential impact of such standards on direct employment and manufacturing capacity. The MIA includes both quantitative and qualitative aspects. The quantitative part of the MIA primarily relies on the Government Regulatory Impact Model (“GRIM”), an industry cash-flow model adapted for microwave ovens, with the key output of industry net present value (“INPV”). The qualitative part of the MIA addresses the potential impacts of energy conservation standards on manufacturing capacity and industry competition, as well as factors such as product characteristics, impacts on particular subgroups of firms, and important market and product trends.
As part of the MIA, DOE intends to analyze impacts of any amended energy conservation standards on subgroups of manufacturers of covered products, including small business manufacturers. DOE uses the Small Business Administration's (“SBA”) small business size standards to determine whether manufacturers qualify as small businesses, which are listed by the applicable North American Industry Classification System (“NAICS”) code.
One aspect of assessing manufacturer burden involves examining at the cumulative impact of multiple DOE standards and the product-specific regulatory actions of other Federal agencies that affect the manufacturers of a covered product or equipment. While any one regulation may not impose a significant burden on manufacturers, the combined effects of several existing or impending regulations may have serious consequences for some manufacturers, groups of manufacturers, or an entire industry. Assessing the impact of a single regulation may overlook this cumulative regulatory burden. In addition to energy conservation standards, other regulations can significantly affect manufacturers' financial operations. Multiple regulations affecting the same manufacturer can strain profits and lead companies to abandon product lines or markets with lower expected future returns than competing products. For these reasons, DOE conducts an analysis of cumulative regulatory burden as part of its rulemakings pertaining to appliance efficiency.
In the field of economics, a market failure is a situation in which the market outcome does not maximize societal welfare. Such an outcome would result in unrealized potential welfare. DOE welcomes comment on any aspect of market failures, especially those in the context of amended energy conservation standards for microwave ovens.
In addition to the issues identified earlier in this document, DOE welcomes comment on any other aspect of energy conservation standards for microwave ovens not already addressed by the specific areas identified in this document.
DOE invites all interested parties to submit in writing by September 27, 2019, comments and information on matters addressed in this document and on other matters relevant to DOE's consideration of amended energy conservations standards for microwave ovens. After the close of the comment period, DOE will review the public comments received and may begin collecting data and conducting the analyses discussed in this RFI.
Submitting comments via
However, your contact information will be publicly viewable if you include it in the comment or in any documents attached to your comment. Any information that you do not want to be publicly viewable should not be included in your comment, nor in any document attached to your comment. Persons viewing comments will see only first and last names, organization names, correspondence containing comments, and any documents submitted with the comments.
Do not submit to
DOE processes submissions made through
Submitting comments via email, hand delivery/courier, or postal mail. Comments and documents submitted via email, hand delivery/courier, or postal mail also will be posted to
Include contact information each time you submit comments, data, documents, and other information to DOE. If you submit via postal mail or hand delivery/courier, please provide all items on a CD, if feasible. It is not necessary to submit printed copies. No telefacsimiles (faxes) will be accepted.
Comments, data, and other information submitted to DOE electronically should be provided in PDF (preferred), Microsoft Word or Excel, WordPerfect, or text (ASCII) file format. Provide documents that are not secured, written in English and free of any defects or viruses. Documents should not contain special characters or any form of encryption and, if possible, they should carry the electronic signature of the author.
Campaign form letters. Please submit campaign form letters by the originating organization in batches of between 50 to 500 form letters per PDF or as one form letter with a list of supporters' names compiled into one or more PDFs. This reduces comment processing and posting time.
Confidential Business Information. According to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email, postal mail, or hand delivery/courier two well-marked copies: One copy of the document marked confidential including all the information believed to be confidential, and one copy of the document marked “non-confidential” with the information believed to be confidential deleted. Submit these documents via email or on a CD, if feasible. DOE will make its own determination about the confidential status of the information and treat it according to its determination.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include (1) a description of the items, (2) whether and why such items are customarily treated as confidential within the industry, (3) whether the information is generally known by or available from other sources, (4) whether the information has previously been made available to others without obligation concerning its confidentiality, (5) an explanation of the competitive injury to the submitting person which would result from public disclosure, (6) when such information might lose its confidential character due to the passage of time, and (7) why disclosure of the information would be contrary to the public interest.
It is DOE's policy that all comments may be included in the public docket, without change and as received, including any personal information provided in the comments (except information deemed to be exempt from public disclosure).
DOE considers public participation to be a very important part of the process for developing energy conservation standards. DOE actively encourages the participation and interaction of the public during the comment period in each stage of the rulemaking process. Interactions with and between members of the public provide a balanced discussion of the issues and assist DOE in the rulemaking process. Anyone who wishes to be added to the DOE mailing list to receive future notices and information about this process or would like to request a public meeting should contact Appliance and Equipment Standards Program staff at (202) 287-1445 or via email at
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to adopt a new airworthiness directive (AD) for all Dassault Aviation Model MYSTERE FALCON 50, MYSTERE FALCON 900, and FALCON 900EX airplanes; and Model FALCON 2000 and FALCON 2000EX airplanes. This proposed AD was prompted by a report that the Dassault maintenance planning document (MPD) of the related Dassault aircraft maintenance manual (AMM) states that the “combined service/storage life” of the fire extinguisher percussion cartridges is longer than it should be, and could have a safety impact in case of fire. This proposed AD would require replacing the fire extinguisher percussion cartridges with serviceable parts. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this proposed AD by September 27, 2019.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet
You may examine the AD docket on the internet at
Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
The FAA will post all comments received, without change, to
The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0084, dated April 17, 2019 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Dassault Aviation Model MYSTERE FALCON 50, MYSTERE FALCON 900, and FALCON 900EX airplanes; and Model FALCON 2000 and FALCON 2000EX airplanes. The MCAI states:
It was identified that the Dassault Maintenance Planning Document (MPD) of the related Dassault Aircraft Maintenance Manual (AMM) for affected aeroplanes mentions that “combined service/storage life” of the affected parts is 12 years, whereas it should be 10 years. The related technical investigation confirmed that this could have a safety impact in case of fire. It is expected that Dassault will update the MPD with the correct value.
This condition, if not corrected, could prevent extinguishing a fire, possibly resulting in damage to the aeroplane and injury to the occupants.
For the reasons described above, this [EASA] AD requires replacement of affected parts with serviceable parts.
You may examine the MCAI in the AD docket on the internet at
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to a bilateral agreement with the State of Design Authority, the FAA has been notified of the unsafe condition described in the MCAI and service information referenced above. The FAA is proposing this AD because the agency evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This proposed AD would require replacing the fire extinguisher percussion cartridges with serviceable parts.
The FAA estimates that this proposed AD affects 1,013 airplanes of U.S. registry. The FAA estimates the following costs to comply with this proposed AD:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This proposed AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.
The FAA determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Will not affect intrastate aviation in Alaska; and
3. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
The FAA must receive comments by September 27, 2019.
None.
This AD applies to all Dassault Aviation Model MYSTERE FALCON 50, MYSTERE FALCON 900, and FALCON 900EX airplanes; and Model FALCON 2000 and FALCON 2000EX airplanes; certificated in any category.
Air Transport Association (ATA) of America Code 26, Fire protection.
This AD was prompted by a report that the Dassault maintenance planning document (MPD) of the related Dassault aircraft maintenance manual (AMM) mentions that the “combined service/storage life” of the fire extinguisher percussion cartridges is 12 years, whereas it should be 10 years, and could have a safety impact in case of fire. The FAA is issuing this AD to address the total life limit of the fire extinguisher percussion cartridges, which if not corrected, could prevent extinguishing a fire and possibly result in damage to the airplane and injury to occupants.
Comply with this AD within the compliance times specified, unless already done.
For the purpose of this AD, the definitions specified in paragraphs (g)(1), (g)(2), (g)(3), and (g)(4) apply to this AD.
(1) An affected part is a fire extinguisher percussion cartridge having part number (P/N) 862700-00 or P/N 862710-00.
(2) Total life is time since the manufacturing date, which includes both the time installed on an airplane and time in storage.
(3) A serviceable part is an affected part that has not exceeded 10 years of total life, or a fire extinguisher percussion cartridge that is not an affected part.
(4) Group 1 airplanes are those that have an affected part installed. Group 2 airplanes are those that do not have an affected part installed.
For Group 1 airplanes, except as specified in paragraph (j) of this AD: Before a fire extinguisher percussion cartridge exceeds 10 years of total life, remove the affected part and replace it with a serviceable part in accordance with the procedures specified in paragraph (l)(2) of this AD.
Guidance for the replacement specified in paragraph (h) of this AD can be found in the applicable Dassault AMM task as specified in figure 1 to paragraph (i) of this AD.
For Group 1 airplanes: For a fire extinguisher percussion cartridge that, on the effective date of this AD, has a total life of 9 years 6 months or more, the replacement required by paragraph (h) of this AD can be deferred up to 6 months after the effective date of this AD.
For Group 1 and Group 2 airplanes: As of the effective date of this AD, no person may install, on any airplane, a fire extinguisher percussion cartridge, unless the part is a serviceable part as specified in this AD, and that, following installation, the affected part is replaced as required by paragraph (h) of this AD.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2019-0084, dated April 17, 2019, for related information. This MCAI may be found in the AD docket on the internet at
(2) For more information about this AD, contact Tom Rodriguez, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3226.
(3) For service information identified in this AD, contact Dassault Falcon Jet Corporation, Teterboro Airport, P.O. Box 2000, South Hackensack, NJ 07606; telephone 201-440-6700; internet
Office of Government-wide Policy (OGP), General Services Administration (GSA).
Proposed rule.
GSA is proposing to amend the Federal Management Regulation part regarding utility services. The rule clarifies the authority an agency must have in order to procure utility services and describes in detail agencies' responsibilities concerning the procurement of such services. To better direct agencies that operate under a utility service delegation from GSA, the rule adds a reference to the section of the Federal Acquisition Regulation that addresses the acquisition of utility services and other procurement guidance. Additionally, the rule clarifies responsibilities for the Department of Defense and the Department of Energy for compliance.
Interested parties should submit written comments to the Regulatory Secretariat Division at one of the addresses shown below on or before October 15, 2019 to be considered in the formation of the final rule.
Submit comments in response to FMR Case 2016-102-3 by any of the following methods:
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For clarification of content, contact Mr. Chris Coneeney, Director, Real Property, Office of Government-wide Policy, at 202-208-2956, or email at
This part was last revised and published in the
• Updating the regulation to both clarify the authority an agency must have and point the reader to the appropriate parts of the Federal Acquisition Regulation that relate to the acquisition of utility services;
• Clarifying agency, the Department of Defense, and the Department of Energy responsibilities regarding utility services.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule is a significant regulatory action and was subject to review under Section 6(b) of E.O. 12866. GSA has determined that this proposed rule is not a major rule under 5 U.S.C. 804.
This proposed rule is not expected to be subject to the requirements of E.O. 13771 (82 FR 9339, February 3, 2017) because this proposed rule is expected to be related to agency organization, management, or personnel.
This proposed rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the changes to the FMR do not impose any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
This proposed rule is exempt from Congressional review under 5 U.S.C. 801 since it relates solely to agency management and personnel.
Federal buildings and facilities, Government property management, Rates and fares, Utilities.
40 U.S.C. 121(c) and 40 U.S.C. 501.
This part covers the procurement and management of public utility services. It does not cover utilities that are provided as part of a lease. For more information on the procurement of utility services, refer to Federal Acquisition Regulation (FAR) Part 41, Acquisition of Utility Services. For more information on the management of Utility Services, refer to 40 U.S.C. 501.
The authorities for this regulation are:
(a) 40 U.S.C. 121(c);
(b) 40 U.S.C. 501.
All Executive agencies procuring, managing or supplying utility services under Title 40 of the United States Code, including GSA's Public Buildings Service (PBS), Department of Defense, Department of Energy, and those agencies operating under, or subject to, the authorities of the Administrator of General Services must comply with these provisions. For information on a utility services delegation of authority, refer to part 102-72.100 of this chapter.
Unless otherwise indicated, use of pronouns “we,” “you,” and their variants throughout this part refer to an Executive agency. Refer to part 102-71, General, of this chapter, for the definition of Executive agency.
Refer to sections 102-2.60 through 102-2.110 of this chapter for information on how to obtain a deviation from this part.
If you do not have a delegation of authority issued by GSA to procure utility services, or independent authority for such procurements, you cannot procure utility services. The Secretary of Defense is independently authorized to take such actions without a delegation from GSA, when the Secretary determines such actions to be in the best interests of national security. For more information on a utility services delegation of authority refer to parts 102-72.100 and 102-72.105 of this chapter.
Executive agencies, operating under a utility services delegation from GSA, or the Secretary of Defense, when the Secretary determines it to be in the best interests of national security, may enter into contracts for utility services (such as commodities and utility rebate programs), pursuant to the terms and conditions contained in the delegation and in accordance with FAR Part 41, Acquisition of Utility Services. FAR Part 41 requires that agencies provide or procure from sources of supply that are the most advantageous to the Federal Government in terms of economy, efficiency, reliability, or quality of service; while 40 U.S.C. 501(c) requires that agencies provide or procure such services with due regard to the mission responsibilities of the agencies concerned. For information on utility services delegation of authority refer to part 102-72 of this chapter, Delegation of Authority. For additional information on contracts for utility services search on the topics Utility or Energy on the Acquisition Gateway,
Unless otherwise authorized by law, absent a delegation from GSA, Executive agencies must not engage in the types of representation referenced at 40 U.S.C. 501(c), Services for Executive agencies. The Secretary of Defense is independently authorized to take such actions without a delegation from GSA, when the Secretary determines such actions to be in the best interests of national security. Refer to part 102-71, General, for definitions of Executive agencies and state. For information on delegation of authority refer to part 102-72, Delegation of Authority.
Office of Head Start (OHS), Administration for Children and Families (ACF), Department of Health and Human Services (HHS).
Notice of proposed rulemaking.
In this NPRM, we propose changes to two of the seven conditions of the Designation Renewal System for Head Start Grantees (DRS): The condition related to the Classroom Assessment Scoring System: Pre-K (CLASS) and the fiscal condition related to audit findings. For the CLASS condition, we propose to remove the lowest 10 percent criterion and set more rigorous minimum thresholds across all three domains that grantees must meet in order to avoid competition. For the fiscal condition, we propose to add a second criterion that would consider additional findings from annual audits. A grantee would be required to compete for continued funding if they met either criterion.
We also propose technical changes within part 1304 subpart B (Designation Renewal) to remove any outdated provisions to the regulation. These technical fixes were not included in the publication of the Head Start Program Performance Standards (performance standards) final rule in 2016 because the Designation Renewal section of the regulation was not open for amendment in the revision of the performance standards.
Submit either electronic or written comments by September 27, 2019.
You may submit comments, identified by [docket number and/or RIN number], by any of the following methods:
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Colleen Rathgeb, Office of Head Start, Planning, Oversight, and Policy Division Director, (202) 358-3263,
Since its inception in 1965, Head Start has been a leader in helping children from low-income families reach kindergarten more prepared to succeed in school. Through the
The DRS requires grantees to compete for continued funding if they meet one or more of the following seven conditions:
(1) One deficiency under section 641A(c)(1)(A), (C), or (D) of the Act;
(2) failure to establish, use, and analyze children's progress on agency established School Readiness goals;
(3) scores below minimum thresholds in any of the three domains of the CLASS or in the lowest 10 percent in any CLASS domain out of the grantees monitored in a given year unless the grantee's score is equal to or above the standard of excellence for that domain;
(4) revocation of a license to operate a center or program;
(5) suspension from the program;
(6) debarment from receiving federal or state funds or disqualified from the Child and Adult Care Food Program; or,
(7) an audit finding of at risk for failing to continue as a “going concern.”
We did not revise the DRS when we issued the new Head Start Program Performance Standards (performance standards) in 2016 because the transition period to five-year grants was not complete.
As required in Section 641(c)(8) of the Head Start Act (42 U.S.C. 9836(c)(8)), ACF has been regularly analyzing data on the implementation of the DRS and on those grantees required to compete. In 2016, ACF's Office of Planning, Research, and Evaluation published a report of its DRS evaluation, titled “Early Implementation of the Head Start Designation Renewal System,” which examined how the system is addressing its goals of transparency, validity, and reliability.
We published a request for comment in the
(1) Remove lowest 10 percent in any of the three CLASS domains;
(2) Increase Emotional Support threshold from 3 to 5;
(3) Increase Classroom Organization threshold from 4 to 5;
(4) Allow the Secretary to set Instructional Support (IS) threshold each year using CLASS scores from previous year's monitoring data;
(5) How Instructional Support and other thresholds could be set and/or adjusted to incentivize continuous program improvement; and
(6) Administrative changes to DRS to more broadly include ways we can incentivize robust competition with new applicants, facilitate smooth transitions when there is a new grantee as a result of competition, and improve the DRS processes.
We received 145 unique comments in response to the
Some commenters recommended we no longer use CLASS in DRS. Nearly all commenters supported removal of the lowest 10 percent CLASS condition. Most commenters mentioned the lowest 10 percent CLASS condition resulted in a moving target for grantees. A majority supported the use of absolute thresholds and keeping the current thresholds in each domain. Many commenters suggested using CLASS scores from two reviews (
We believe the DRS has driven increased accountability and improved the quality of services Head Start programs are providing to children and families. The DRS evaluation provides evidence that DRS is incentivizing grantees to engage in a range of quality improvement activities.
For reasons established in this document, we only propose targeted changes to the CLASS condition and the audit-based fiscal condition. The current CLASS condition competes grantees who fall below the 10 percent requirement in any of the three CLASS domains, which often results in grantees being designated for competition that are demonstrating high quality in Emotional Support and Classroom Organization, while grantees who fall below the mid-range for quality in Instructional Support are not always identified for competition. The existing fiscal condition, under-identifies grantees with fiscal challenges documented in their annual audit data and underutilizes important annual audit data. Consequently, we believe revisions to these conditions are necessary to ensure we identify those communities where competition is the most warranted, more effectively hold grantees accountable, and increase the transparency of DRS.
In the request for comments, we received a few comments related to the deficiency condition. While ACF is not proposing a change to the deficiency condition in this NPRM, we are seeking comment about whether we should consider a change to the single deficiency trigger. ACF continues to stand by its policy that one deficiency is serious enough to cause a grantee to compete for continued funding. However, we have heard concerns that the single deficiency trigger is too stringent and causes competition for grantees that are high quality and had an isolated issue. We believe this NPRM provides another opportunity for stakeholders to provide input to ACF on this issue. We specifically seek comment on whether the condition should be two or more deficiencies rather than a single deficiency.
After extensive expert feedback it was determined that CLASS is the only existing instrument that meets the statutory requirements in Section 641A(c)(2)(F) of the Act. The CLASS is a research-based tool that measures teacher-child interaction on a seven-point scale in three broad domains:
The CLASS was developed in response to research findings indicating the importance of teacher-child interactions as a demonstrated measure of classroom quality and as a means to promote children's development and learning. The tool is administered by trained and certified observers using a specific protocol for scoring. Observers assess how teachers interact with children in classrooms and rate each CLASS domain on a 7-point scale, from low to high. Observers assign a score of 1 to 2 (low-range of quality) when teachers poorly manage children's behaviors, when instruction is purely rote, or when there is little teacher-child interaction. Observers assign a score of 3 to 5 (mid-range of quality) when teachers show a mix of effective interactions with periods when interactions are either not effective or are absent. Observers assign a score of 6 to 7 (high-range of quality) if teachers show consistently effective teacher-child interactions throughout the observation period.
Section 641(c)(1) of the Head Start Act requires DRS to include, as a condition for competition, a criteria based on grantee's annual audits. The current DRS fiscal condition requires competition when a grantee is at risk for failing to continue as a going concern, meaning an organization is facing threat of liquidation. As defined in the performance standards, going concern means an organization that operates without the threat of liquidation for a period of at least 12 months. This finding is a very serious fiscal finding related to the viability of an organization. Based on our analysis of the last six cohorts, this condition has identified very few grantees for competition.
The Head Start Act and regulations have required annual audits of grantees for decades. The performance standards conform to the new Uniform Administrative Requirements for HHS Awards (45 CFR part 75) that requires every federal grantee receiving $750,000 or more to complete an annual audit and report the results to the Federal Audit Clearinghouse (FAC). 45 CFR 75.501(a). This requirement applies to a majority of Head Start grantees. Qualified independent audit professionals prepare annual audit reports and file the reports with the FAC. Once an audit report is filed with the FAC, it is final and available to the public. If there are questioned cost or findings in the audit report, ACF implements its audit resolution process to ensure the grantee has addressed any issues. The audit resolution process may require the grantee to implement new fiscal policies and procedures to resolve an issue. Further, the process may require resolution of any questioned costs or any disallowances.
Audit findings according to the Uniform Administrative Requirements for HHS Awards at 45 CFR 75.2 mean “deficiencies which the auditor is required by 75.516(a) to report in the schedule of findings and questioned costs.” An independent auditor evaluates an entity based on a set of several elements related to management of financial systems and prudent fiscal decision making, or internal control.
Internal control, as defined in accounting and auditing, is a process for assuring an organization's objectives in operational effectiveness and efficiency, reliable financial reporting, and compliance with laws, regulations, and policies. The elements of audit findings include significant deficiencies or material weaknesses in internal control; questioned costs, compliance with federal and other statutes and regulations; and known or likely fraud.
In 2005, the United States Government Accountability Office (GAO) issued a report that identified risks in ACF oversight of Head Start grantees financial management weaknesses and recommended considering competing grantees showing fiscal management and other risks.
In 2010, the DRS Notice of Proposed Rulemaking proposed a two part fiscal condition that included “going concern” and “material weakness.” 75 FR 57704, 57717. Commenters responding to the NPRM stated a material weakness finding could represent a minor problem and suggested that we look instead for a pattern of fiscal challenges. 76 FR 70010, 70021. As described in the Section-by-Section Discussion, we believe that a more comprehensive look at the audit report would identify patterns of fiscal challenges and more accurately identify grantees for competition.
We propose changes to the CLASS condition and the fiscal condition related to audit findings to ensure we identify those communities where competition is the most warranted, more effectively hold grantees accountable, and increase the transparency of DRS. For the CLASS condition, our goals are to ensure we are not competing grantees demonstrating high quality in Emotional Support and Classroom Organization, to compete grantees who have Instructional Support scores that fall below the mid-range of quality, and to create meaningful competition that maximizes our resources and drives quality improvement. For the fiscal condition, our goal is to broaden our use of information about a grantee's fiscal processes, financial management, and fiscal systems by incorporating additional audit findings to ensure ACF better identifies grantees with fiscal challenges for competition. The additional technical revisions to this subpart will not alter the substance of the regulation, but will ensure the
We publish this NPRM under the authority granted to the Secretary of Health and Human Services by sections 641, 644(c), 645A(b)(12), and 647 of the Act (42 U.S.C. 9836, 9839, 9840a, 9842) as amended by the Improving Head Start for School Readiness Act of 2007 (Pub. L. 110-134). Generally, under these sections, the Secretary is required to develop a system for designation renewal. The system must determine if a grantee delivers high-quality comprehensive services that meet families' educational, health, nutritional, and social needs and to determine if the grantee meets program and financial management requirements.
We propose the following changes to the Head Start regulations, under subpart B of part 1304, Federal Administrative Procedures, at §§ 1304.11, 1304.12, and 1304.15 and part 1305, Definitions. We believe these changes will ensure the regulations are accurate and up to date; and that they clarify and streamline the language of the existing regulation. For example, we propose to remove all references to December 9, 2011, the effective date of the DRS regulation, because that date has passed. We also propose to remove any references to the transition to five-year grants since all grantees have been evaluated through DRS and transitioned to five-year grants.
Additionally, we propose substantive changes to conditions in §§ 1304.11(c) and (g) to ensure we identify grantees where competition is most warranted, more effectively hold grantees accountable, and increase the transparency of DRS. Specifically, we propose to raise the absolute threshold for each CLASS domain and remove the lowest 10 percent criterion. We also propose to add a second criterion to the fiscal condition related to audit findings.
Section 1304.11 establishes the conditions that require a grantee to compete for continued funding under the DRS. Congress established the basis for the DRS and we published a final rule codifying these requirements in 2011. If a grantee meets any one of the seven conditions described in this section, an open competition is conducted to determine whether the incumbent grantee or another entity in the community is best qualified to run the Head Start program. This section institutes effective dates for various conditions. Since all grantees have transitioned through DRS and now have five-year grant periods, the various effective dates are no longer relevant. Throughout this part of the NPRM, we describe revisions to remove the outdated language.
This paragraph establishes requirements for grantees developing and using school readiness goals as required in the Act. Grantees are required to establish school readiness goals, aggregate and analyze child-level assessment data three times a year, and analyze individual child-level assessment data to inform progress on the goals. We propose to maintain this requirement and only remove dates that are no longer relevant. Paragraph (b)(1) sets “December 9, 2011” as the date by which grantees must establish school readiness goals. We propose to remove the phrase, “After December 9, 2011” because it is outdated.
In paragraph (b)(1)(ii), we propose to remove the phrase “Birth to Five Head Start Child Outcomes Framework,” and replace it with “Head Start Early Learning Outcomes Framework: Ages Birth to Five.” In 2015, OHS issued a new framework to include children from birth to age five. Additionally, the new framework now has indicators of what children should know and be able to do at 36 and 60 months of age and the developmental progressions that leads to those outcomes.
For the same reason discussed earlier, we propose to remove the phrase, “After December 9, 2011”, in paragraph (b)(2).
This paragraph establishes the use of the CLASS: Pre-K tool to assess a grantee's designation status. This condition is a two-part criterion that consists of both an absolute threshold and a relative threshold. With the absolute threshold, grantees must compete if their CLASS scores fall below the following minimum quality thresholds for each of the three domains: 2 for Instructional Support, 3 for Classroom Organization, and 4 for Emotional Support. The relative threshold requires grantees to compete for continued funding if their average scores across classrooms fall in the lowest 10 percent on any of the three CLASS domains for grantees observed in that year. Additionally, the 10 percent criteria includes a high-quality threshold, or “standard of excellence,” across all domains that would exempt grantees that score a 6 or above from competition.
Based on our experience implementing the CLASS condition since 2012, analysis of our monitoring data, findings of the implementation evaluation, and comments we received in response to the December 2017
Second, the relative threshold in the current CLASS condition means there is no clear target grantees can aim to achieve. Instead of a transparent system where grantees know the standard for which they are being held accountable, a relative threshold results in informing grantees of the expectations after all grantees have been reviewed. The lowest 10 percent criterion also results in a moving target where the expectation of quality changes year to year. The cut-off for a group of grantees monitored in one year is different from the standard for another group of grantees monitored in another year. Recent cut-off scores are as follows; in 2015: Emotional Support 5.6563; Classroom Organization 5.2708; Instructional Support 2.2262; in 2016: Emotional Support 5.5952; Classroom Organization 5.2500; Instructional Support 2.2222; in 2017: Emotional Support 5.7024; Classroom Organization 5.3264; Instructional Support 2.3095.
Third, the current condition creates implementation problems. To determine which grantees score in the lowest 10 percent each year, we must complete all monitoring reviews before we can analyze the full set of data and identify the 10 percent cut-off point. During this waiting period, Head Start programs know their CLASS scores, but do not know whether they are in the lowest 10 percent and will be required to compete.
Given the emphasis on teacher-child interactions as a critical ingredient of a high quality classroom experience, the CLASS tool has been the observational tool used to address research questions in many studies. Evidence suggests children learn more in well-organized classroom environments that are characterized by sensitive and responsive interactions that promote autonomy, conversation, literacy skills, and executive functioning.
Additionally, children showed more advanced academic and language skills when their preschool teachers provided instruction rated in the mid- to high-quality range.
Lastly, there is no national average for CLASS scores, but we can look to numerous studies and settings to tell us how early childhood preschool classrooms typically score across the CLASS domains. Aside from Head Start monitoring, 19 states use CLASS as the classroom observation tool in their state Pre-K programs,
We know the average preschool classroom scores are higher in the domains of Emotional Support and Classroom Organization (5.0-6.0) than in the domain of Instructional Support (2.0-3.0).
For these reasons, we propose to eliminate the lowest 10 percent criterion of the CLASS condition and raise the absolute thresholds to 2.5 for Instructional Support, 5 for Classroom Organization, and 5 for Emotional Support which we believe will improve quality, address all the concerns previously identified and ensure all grantees are held to the same standard year to year. Since research does not specify an exact threshold for each domain, our proposal uses guidelines from the CLASS manual to set thresholds that align with the broad research principle that programs need to be out of the low-range on quality (
In paragraph (c), we propose to remove the colon “:” from the stem sentence. In paragraph (c)(1), we propose to remove the phrase “After December 9, 2011,” because it is outdated and we propose to move the remaining text to the stem sentence. We propose to re-designate paragraph (c)(1) as paragraph (c) and re-designate paragraphs (i) through (iii) as paragraphs (1) through (3).
In new paragraph (c)(1), for the minimum threshold for Emotional Support, we propose to remove “4” and replace it with “5.” We believe this change will increase the standard of quality and move programs closer to the high-quality range. At a score of 5, we would expect to see with more frequency and consistency the behaviors and interactions that matter for
In new paragraph (c)(2), for Classroom Organization, we propose to remove “3” and replace it with “5.” Like the change we propose as the minimum threshold for Emotional Support, we believe this proposed change will also set a much higher standard that moves programs closer to the high-quality range. At a score of 5, we believe we would see many more consistent examples of classroom processes and management that support children's learning. For example, we would see more instances of clear behavioral expectations and use of effective methods to prevent and redirect misbehavior. We would see more teacher preparation for activities, more evidence of classroom routines, and more ways in which the teacher maximizes children's engagement and interest.
In new paragraph (c)(3), for Instructional Support, we propose to remove “2” and replace it with “2.5.” We believe this proposed change would set an expectation that moves programs out of the low range and toward the mid-range of quality. At this higher score, we would expect to see with greater frequency more of the behaviors and interactions that matter for children's learning. For example, we would expect to see more activities that encourage analysis and reasoning, more use of advanced language, and more evidence of teachers expanding on children's learning. Setting the threshold at 2.5 would drive quality improvement and set an achievable and transparent target.
Finally, we propose to remove the existing paragraph (c)(2) in its entirety to eliminate the lowest 10 percent criterion and the standard of excellence. With the proposed use of absolute thresholds, this paragraph is no longer applicable. Additionally, we propose to replace this paragraph with the newly designated paragraph (c)(2) to reflect the proposed new threshold for Classroom Organization.
Paragraph (e) requires a grantee to compete for continued funding if they have been suspended by OHS. When DRS became effective, grantees had an opportunity to appeal a suspension by OHS. However, the grantees' opportunity to appeal a suspension was removed in the performance standards, so we propose to remove references to appeal. For this reason, we are updating this paragraph but not changing the requirement.
Specifically, we propose to remove the phrase “there is a pending appeal and” in the second sentence. In the third sentence of paragraph (e), we propose to add the phrase “and the suspension remains in place,” and remove the phrase, “regardless of the appeal status.” Additionally, we propose to remove the incorrect reference to “1304.16,” and replace it with “1304.15.”
Currently, the fiscal condition of DRS requires a grantee to compete if an audit has indicated the grantee is at risk of ceasing to be a going concern, in other words at risk of liquidation, in the near future. The going concern condition under-identifies grantees with fiscal challenges documented in their annual audit data. Based on our analysis of the last six DRS cohorts, this condition has identified very few grantees for competition. However, our analysis of grantee annual audit reports shows fiscal concerns related to grantees' Head Start funds is a more prevalent issue. For example, numerous grantees had audit findings related to their Head Start grant in two or more audits during their five-year grant period. In focusing only on fiscal viability rather than broader audit findings in DRS, we are missing an opportunity to compete grantees who have other strong indicators of potential fiscal risks. We believe grantees with indicators pointing to a lack of fiscal viability (going concern) must be required to compete, as well as grantees with challenges in fiscal capacity identified before their viability is at risk. Specifically, the current condition does not capture valuable information to inform us of an organization's fiscal processes, systems and management. Since the implementation of this condition in 2011, it has become increasingly evident that we need an earlier predictor to ensure we identify and mitigate potential fiscal risks to an organization prior to facing the threat of a liquidation.
Fiscal challenges may result in operational challenges that create reduced program quality and stability of services to the children and families grantees serve. While we can only speculate on how many grantees would be impacted by this revised condition, we have experiential knowledge that it is best to prevent fiscal emergencies. In recent years, multiple grantees have been terminated or relinquished their grants due to their inability to correct fiscal problems. Unaddressed fiscal challenges can lead to a grantee's inability to purchase supplies, pay teachers, or ultimately serve children. If a Head Start grantee is terminated or relinquishes the grant due to a fiscal crisis, a disruption in services to children and families may occur. Therefore, we want to compete grantees before their fiscal challenges escalate. Competition allows the incumbent grantee and other entities in the community an opportunity to demonstrate they are best qualified fiscally and programmatically to run the Head Start program. Each community deserves to have a fiscally responsible grantee administering the Head Start program.
Therefore, we propose to add a second criterion to the existing condition based on grantees' annual independent audit findings. In examining options for the proposed condition, we worked with the ACF Office of Grants Management and other ACF divisions. Initially, we considered requiring grantees to compete if they were not deemed a low risk auditee in their audit filing. The determination of low risk auditee considers elements that indicate fiscal soundness, strong internal controls, and prudent financial management. A low risk determination includes the following elements: (1) Less than five percent total costs questioned, (2) continues as a going concern, and (3) no material weaknesses. A “material weakness” is a deficiency, or a combination of deficiencies, in internal control over financial reporting, such that there is a reasonable possibility that a material misstatement of the entity's annual or interim financial statements will not be prevented or detected on a timely basis.
After analyzing this option, we decided that a not low risk determination could indicate potential fiscal risk at the agency level. However, it does not necessarily indicate major ongoing problems in financial management of a Head Start grant. Instead, we propose to focus on audit findings specifically related to the Head Start grant. We believe a grantee should be required to compete if it had any audit findings associated with Head Start funds in two or more annual audit reports within the first three fiscal years of its five-year grant cycle. We believe adding this second criterion to the fiscal condition addresses the current weaknesses in two ways.
First, examining additional audit data gives a more comprehensive picture of the grantee's fiscal management
Second, going concern does not directly target fiscal challenges in managing the Head Start grant. We believe the proposed additional criterion would ensure that we use specific Head Start data in making DRS determinations. Many Head Start grantees manage grants from multiple Federal agencies and the annual audit report encompasses all the programs run by a grantee. We would only consider audit findings in any Head Start grants for purposes of DRS to specifically mitigate fiscal risks to the Head Start program.
Our proposal changes the timeframe for using a finding of going concern but maintains the existing requirement for competition. Instead of competing a grantee that has been found at risk of failing to be a going concern in the previous 12 months, we believe that a finding of going concern at any time during the five-year grant period is significant and we revise the regulatory text accordingly.
This proposed revision to the fiscal condition does not impose a new requirement on Head Start grantees. Conversely, it allows OHS to use existing requirements and data more effectively for ongoing oversight and improvement of grantees' fiscal systems. We believe this proposal is in line with the goal of DRS to promote accountability and continuous improvement of grantees. Competition is not an adverse action. It requires the current grantee to demonstrate that renewal of their grant is warranted, while providing other entities in the community an opportunity to apply for funding.
Specifically, we propose to revise paragraph (g) and add new paragraphs (g)(1) and (g)(2). The proposed new paragraph (g) outlines the two fiscal criteria and would read as follows, “An agency meets one of the two criteria of this fiscal requirement:” Existing paragraph (g), the current criteria requiring a grantee to compete if it is at risk of failing to be a going concern, will be redesignated as (g)(1). We propose to amend new paragraph (g)(1) by changing the timeframe from within the twelve months preceding the designation determination to a timeframe within the five-year grant period.
Proposed new paragraph (g)(2) will establish a second fiscal criterion that a grantee with audit findings associated with its Head Start funds (CFDA 93.600) in two or more audit reports in the first three years of the grant period will be required to compete.
This section requires grantees to report to OHS when certain events have occurred. Grantees are required to report to OHS within 10 working days in the case of the following events: (1) Revocation of a license; (2) bankruptcy; (3) debarment; and (4) audit finding of at risk for ceasing to be a going concern. We do not propose any policy changes, but propose to remove dates that are no longer relevant. We propose to remove paragraph 1304.12 (a) in its entirety and in paragraph (b) we propose to remove the phrase “following December 9, 2011.” Because paragraph (a) is removed, we propose to redesignate paragraphs (b)(1) through (4) as paragraphs (a), (b), (c), and (d) respectively.
This section creates the processes for a grantee requesting non-competitive renewal, for OHS determining designation, and for OHS notifying grantees of their designation renewal status. In this section, we propose to remove the language that refers to the transition to five-year grants and the process before and after the transition. This language is no longer relevant as all grantees have transitioned through DRS to five-year grants. Our proposal seeks to simplify, clarify, and update this section. We also revise language to make it clear that only data from the grantee's current grant period will be reviewed for designation determinations. In addition, we no longer send communication to grantees via certified mail and therefore we propose to remove that language.
We propose to remove paragraph (a)(1) entirely. In existing paragraph (a)(2), we propose to remove the phrase “After the transition period,” at the beginning of the first sentence because it is out of date. Next, we propose to redesignate paragraph (a)(2) as paragraph (a). The newly redesignated paragraph (a) will read: “Grantees must apply to be considered for Designation Renewal. A Head Start or Early Head Start agency wishing to be considered to have its designation as a Head Start or Early Head Start agency renewed for another five-year period without competition must request that status from ACF at least 12 months before the end of their five-year grant period or by such time required by the Secretary.” In paragraph (b), we propose to add the phrase “during the current grant period,” at the end of the sentence since all grantees are now on five-year grant periods and only data from the current grant period will be reviewed. We also propose to remove the colon “:” and replace it with a period “.”. We propose to remove paragraphs (b)(1), (2) and (3) in their entirety because they are out of date.
We propose to amend paragraph (c) by deleting the colon “:” at the end and replacing it with a comma “,”. At the end of paragraph (c), we propose to add the phrase “at least 12 months before the expiration date of a Head Start or Early Head Start agency's current grant stating:” Further, due to the mention of the transition period, we propose to eliminate paragraphs (c)(1), (c)(2) and (c)(3) entirely. Consequently, we propose to redesignate paragraph (c)(3)(i) as paragraph (c)(1) and paragraph (c)(3)(ii) as paragraph (c)(2). In paragraph (c)(2), we propose to remove the reference to “(c)(3)(i),” and replace it with “(c)(1).”
Section 1305.2 defines the terms used in the performance standards. We propose to add to § 1305.2 a definition of “denial of refunding” which was referenced in § 1304.13 and accidentally omitted from the performance standards published in 2016.
The Regulatory Flexibility Act (RFA),
The term “small entities,” as defined in the RFA, 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. Under this definition, some Head Start grantees may be small entities. However, in accordance with the RFA, we certify this proposed rule would not have a significant economic impact on a substantial number of small entities.
In this NPRM, we are not imposing a negative impact on small entities so we do not need to consider relief. The action we propose here is intended to ensure accountability for Federal funds is consistent with the purposes of the Head Start Act and is not duplicative of other requirements. If you think your business, organization, or governmental jurisdiction qualifies as a small entity and this rule would have a significant economic impact on it, please submit a comment (see
The Unfunded Mandates Reform Act of 1995 (UMRA)
Section 654 of the Treasury and General Government Appropriations Act of 1999 requires Federal agencies to determine whether a policy or regulation may negatively affect family well-being. If the agency determines a policy or regulation negatively affects family well-being, then the agency must prepare an impact assessment addressing seven criteria specified in the law.
We believe it is not necessary to prepare a family policymaking assessment, because the action we propose in this NPRM will not have any impact on the autonomy or integrity of the family as an institution. However, if you think this action would have a negative effect on family well-being, please submit a comment explaining why (see
Executive Order 13132 requires Federal agencies to consult with state and local government officials if they develop regulatory policies with federalism implications. Federalism is rooted in the belief that issues that are not national in scope or significance are most appropriately addressed by the level of government close to the people. This proposed rule will not have substantial direct impact on the states, on the relationship between the Federal Government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this action does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
The Congressional Review Act (CRA) allows Congress to review “major” rules issued by Federal agencies before the rules take effect.
This proposed rule establishes new information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3507). As required by the Paperwork Reduction Act of 1995, we will submit a copy of these sections to the Office of Management and Budget (OMB) for review and they will not be effective until they have been approved and assigned an OMB control number.
45 CFR 1304.15(a) requires Head Start grantees to submit a letter requesting renewal for a new non-competitive 5-year grant and the estimated burden to submit a letter is 15 minutes for 400 grants. The non-competitive renewal request consists of filling in a template letter and sending it through OHS system, so the burden is small. This calculation assumes in any given year, about one-fifth of all 2,000 grants, or 400 grants, are nearing the end of their current 5-year project period and therefore a designation under DRS will be made for these grants. Head Start grantees may hold more than one grant (Head Start, Early Head Start, EHS—CC Partnership, Migrant Seasonal Head Start, and American Indian Alaska Native Head Start) and each grant is considered separately in DRS.
When a Head Start grant meets any of the conditions outlined in 45 CFR 1304.11 the grantee is designated for competition and must submit an application during competition to be considered for continued funding as required under 45 CFR 1304.13. The burden to submit an application is estimated at 60 hours for an estimated 120 grants each year. This figure assumes that about one-third of the 400 grants, or 120 grants, are required to compete. The total annual burden for existing requirements is 7,300 hours.
We estimate the proposed revisions to the CLASS and fiscal conditions will increase the number of grants required to compete by 70 over five years, or 14 annually. The total burden hours for the additional 14 grants is 840 hours.
The total annualized cost for existing requirements is estimated at $345,874. This figure is based on job code 11-9031 and wage data from May 2017 at $23.69 per hour. To account for fringe benefits and overhead the rate is multiplied by two, which is $47.38. The estimate of annualized cost to respondents for hour burden is $47.38 times 7,300 or $345,874;
The total annualized cost for revisions to the CLASS and fiscal conditions is $47.38 times 840 or $39,799. This is using the same job code and wage data used for existing requirements.
We invite comments on: (1) Whether the proposed collection of information is necessary for the DRS, including whether the information will have practical utility; (2) the accuracy of our estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate and other forms of information technology.
OMB is required to make a decision concerning the collections of information contained in these proposed regulations between 30 and 60 days after publication of this document in the
Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review as established in Executive Order 12866, emphasizing the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility.
Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. This rule is significant under the meaning of section 3(f); accordingly, it has been reviewed by OMB.
Executive Order 13771, entitled “Reducing Regulation and Controlling Regulatory Costs,” was issued on January 30, 2017 (82 FR 9339, February 3, 2017) and requires that the costs associated with significant new regulations “shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.” This rulemaking is not expected to be subject to the requirements of E.O. 13771 because it would result in no more than
Based on our analysis of our data, this proposed policy change would have little to no impact on the number of grantees competing due to the CLASS condition. The increase in the number of grantees competing for their Instructional Support scores would offset any decrease in the numbers of grantees competing for their Emotional Support or Classroom Organization scores.
Based on our analysis of our fiscal data from 2015 through 2017, this proposed policy change to the fiscal condition would significantly increase the number of grantees that would be required to compete due to the condition. Approximately 70 grantees (four percent) had audit findings related to its Head Start funds in two or more audit reports covering years one, two, and there of the current five-year grant period. By comparison, in the first six cohorts of DRS, very few grantees competed because of the going concern fiscal condition. We believe this increase in the number of grantees that will be required to compete is warranted to ensure we are competing grantees with fiscal concerns. Competing grantees before known fiscal challenges escalate to a crisis point could prevent potential termination or relinquishment of the grant. A disruption in services to
These changes proposed in this NPRM would revise policies promulgated in a prior rule. In the case of CLASS revisions, grantees have discussed revisions since the initial requirements were implemented. This proposed regulation does not impose new requirements on grantees. For the CLASS condition, it streamlines the requirement. For the fiscal condition, it uses an existing requirement to make designation renewal decisions.
We do not believe there will be a significant economic impact from this regulatory action. We estimate that roughly one-third of grantees reviewed in each review cycle will be affected by the regulation. The costs of implementation of these rules for the subset of grantees that would be required to compete in any year (estimated to be approximately $1,500 for each grantee) is well under $1 million. The estimated $1,500 per-grantee cost is based on the time to complete a competitive application. It assumes 60 hours per application at a cost of $25 per hour in staff time. Applications would likely be completed by a combination of the Head Start Assistant Director and other managers in the program (
Audit, Classroom Assessment Scoring System (CLASS), Competition, Designation renewal system, Education of disadvantaged, Fiscal, Grant programs, Head Start, Monitoring, Social programs.
Administrative practice and procedure.
For reasons stated in the preamble, we propose to amend 45 CFR parts 1304 and 1305 as follows:
42 U.S.C. 9801
(b) * * *
(1) Established program goals for improving the school readiness of children participating in its program in accordance with the requirements of section 641A(g)(2) of the Act and demonstrated that such goals:
(ii) Align with the Head Start Early Learning Outcomes Framework: Ages Birth to Five, state early learning guidelines, and the requirements and expectations of the schools, to the extent that they apply to the ages of children participating in the program, and at a minimum address the domains of language and literacy development, cognition and general knowledge, approaches toward learning, physical well-being and motor development, and social and emotional development;
(2) Taken steps to achieve the school readiness goals described under paragraph (b)(1) of this section demonstrated by:
(i) Aggregating and analyzing aggregate child-level assessment data at least three times per year (except for programs operating fewer than 90 days, which will be required to do so at least twice within their operating program period) and using that data in combination with other program data to determine grantees' progress toward meeting its goals, to inform parents and the community of results, and to direct continuous improvement related to curriculum, instruction, professional development, program design, and other program decisions; and
(ii) Analyzing individual ongoing, child-level assessment data for all children participating in the program and using that data in combination with input from parents and families to determine each child's status and progress with regard to, at a minimum, language and literacy development, cognition and general knowledge, approaches toward learning, physical well-being and motor development, and social and emotional development, and to individualize the experiences, instructional strategies, and services that best support each child.
(c) An agency has been determined during the relevant time period covered by the responsible HHS official's review under § 1304.15 to have an average score across all classrooms observed below the following minimum thresholds on any of the three CLASS: Pre-K domains from the most recent CLASS: Pre-K observation:
(1) For the Emotional Support domain the minimum threshold is 5;
(2) For the Classroom Organization domain, the minimum threshold is 5;
(3) For the Instructional Support domain, the minimum threshold is 2.5.
(e) An agency has been suspended from the Head Start or Early Head Start program by ACF during the relevant time period covered by the responsible HHS official's review under § 1304.15 and the suspension has not been withdrawn. If the agency did not have an opportunity to show cause as to why the suspension should not have been imposed, or why the suspension should have been lifted if it had already been imposed under part 1304, the agency will not be required to compete based on this condition. If an agency has received an opportunity to show cause and the suspension remains in the place, the condition will be implemented.
(g) An agency meets one of the two criteria of this fiscal requirement:
(1) Has been determined within the first four years of the five-year grant period to be at risk of failing to continue functioning as a going concern. The final determination is made by the responsible HHS official based on a review of the findings and opinions of an audit conducted in accordance with section 647 of the Act; an audit, review or investigation by a state agency; a review by the National External Audit Review (NEAR) Center; or an audit, investigation or inspection by the Department of Health and Human Services Office of Inspector General; or,
(2) Has been determined by the responsible HHS official within the first four years of the five-year grant period to have audit findings associated with its Head Start funds (CFDA 93.600) in two or more audit reports covering years one, two, and three of the current project period submitted to the Federal Audit Clearinghouse (in accordance with section 647 of the Act).
Head Start agencies must report in writing to the responsible HHS official within 10 working days of occurrence any of the following events:
(a) The agency has had a revocation of a license to operate a center by a state or local licensing entity.
(b) The agency has filed for bankruptcy or agreed to a reorganization plan as part of a bankruptcy settlement.
(c) The agency has been debarred from receiving Federal or state funds from any Federal or state department or agency or has been disqualified from the Child and Adult Care Food Program (CACFP).
(d) The agency has received an audit, audit review, investigation, or inspection report from the agency's auditor, a state agency, or the cognizant Federal audit agency containing a determination that the agency is at risk for ceasing to be a going concern.
(a) Grantees must apply to be considered for Designation Renewal. A Head Start or Early Head Start agency wishing to be considered to have its designation as a Head Start or Early Head Start agency renewed for another five-year period without competition must request that status from ACF at least 12 months before the end of their five-year grant period or by such time required by the Secretary.
(b) ACF will review the relevant data to determine if one or more of the conditions under § 1304.11 were met by the Head Start and Early Head Start agency's program during the current grant period.
(c) ACF will give notice to all grantees on Designation Renewal System status, except as provided in § 1304.14, at least 12 months before the expiration date of a Head Start or Early Head Start agency's current grant stating:
(1) The Head Start or Early Head Start agency will be required to compete for funding for an additional five-year period because ACF finds that one or more conditions under § 1304.11 were met by the agency's program during the relevant time period described in paragraph (b) of this section, identifying the conditions ACF found, and summarizing the basis for the finding; or,
(2) That such agency has been determined on a preliminary basis to be eligible for renewed funding for five years without competition because ACF finds that none of the conditions under § 1304.11 has been met during the relevant time period described in paragraph (b) of this section. If prior to the award of that grant, ACF determines that the grantee has met one of the conditions under § 1304.11 during the relevant time period described in paragraph (b) of this section, this determination will change and the grantee will receive notice under paragraph (c)(1) of this section that it will be required to compete for funding for an additional five-year period.
42 U.S.C. 9801
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to list the Franklin's bumble bee (
In this proposed rule, we determine that designating critical habitat for the Franklin's bumble bee is not prudent, because the Franklin's bumble bee is a habitat generalist, and the present or threatened destruction, modification, or curtailment of habitat is not a threat to Franklin's bumble bee. Consequently, the designation of critical habitat would not be beneficial to the Franklin's bumble bee.
We will accept comments received or postmarked on or before October 15, 2019. Comments submitted electronically using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Paul Henson, Field Supervisor, U.S. Fish and Wildlife Service, Oregon Fish and Wildlife Office, 2600 SE 98th Ave. Suite 100, Portland, OR 97266; telephone 503-231-6179. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:
(1) Franklin's bumble bee's biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species, its habitat, or both.
(2) Our analysis of the current status of Franklin's bumble bee. As discussed below (see Background below, for more information), based on the lack of observations of Franklin's over the last 13 years it is possible that the species is extinct. We will be analyzing any new information on this question before making a final determination; if we determine that the best available information indicates that the species is likely extinct, we will withdraw this proposed rule. Thus, we are seeking any information regarding the persistence or extinction of the species within its historical range including:
(a) Verifiable reports or evidence of Franklin's bumble bee occurrence in its range; or
(b) any information that may indicate extinction of the species.
(3) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.
(4) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.
(5) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.
You may submit your comments and materials concerning this proposed rule by one of the methods listed in
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. All comments submitted electronically via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531
Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received by the date specified in
In accordance with our joint policy on peer review published in the
We were petitioned to list Franklin's bumble bee as endangered under Act on June 23, 2010, by the Xerces Society for Invertebrate Conservation and Dr. Robbin Thorp, Professor Emeritus from the University of California (Xerces Society and Thorp 2010, p. 2). On September 13, 2011, we announced in the
A thorough review of the taxonomy, life history, and ecology of Franklin's bumble bee is presented in the Franklin's Bumble Bee Species Status Assessment report (SSA Report; U.S. Fish and Wildlife Service 2018) on
Franklin's bumble bee was first observed in 1917 and first described in 1921, and limited occurrence and observation data exists for Franklin's bumble bee prior to 1998. The species has been found on many privately owned sites as well as municipal, State and federally owned land. Historical observations and occurrence data for Franklin's bumble bee prior to 1998 include randomly reported observations, student collections, and museum specimens, as well as the collections and notes of interested parties, natural resource managers, and university staff (Xerces Society and Thorp 2010, pp. 34-40). A more intensive and targeted search effort for the species began in 1998 in areas thought to have the highest likelihood of Franklin's bumble bee presence. There was initial success at finding a higher abundance of the species than ever previously reported in one year, 98 bees in 1998 (mostly from 2 sites). However, in subsequent years searchers found fewer and fewer bees, and no Franklin's bumble bees have been found since the last sighting of a single individual in Oregon in 2006. The variations in timing, scope, intensity, and methodology of search efforts (including those since 1998) and the lack of observations since 2006 prevent the identification of any population trends. Many of the occurrence records just provide point data for an occurrence, with no details on the size of the area searched or whether or not the record reflected a comprehensive search of an area. Many records also lack details on the level of survey effort per location (number of searchers, hours of search effort per day, number of days per search effort).
The lack of systematic surveys across the historical range of the species over time prevents us from using occurrence records to extrapolate reasonable estimates of species abundance or distribution or concluding that the species is extinct; even though none have been seen since 2006, Franklin's bumble bee populations could potentially persist undetected. The areas chosen for survey were selected due to a combination of abundance of floral resources throughout the colony cycle, relatively recent historical occurrence of the species, and accessibility to surveyors. However, the surveyed area represents a relatively small percentage of the historical range of the Franklin's bumble bee; therefore, it is possible the species may persist in other areas of the range. There are numerous instances of species rediscovered after many years, even decades, of having been believed extinct (
The specific life-history characteristics and behavior of this rare species have not been studied; much of the information presented in the SSA Report (U.S. Fish and Wildlife Service 2018) is inferred from information on
Franklin's bumble bee is a primitively eusocial (highly social) bumble bee, living in colonies made up of a queen and her offspring (males and workers). Like other eusocial
Colonies of Franklin's bumble bee have an annual cycle, initiated each spring when solitary queens emerge from hibernation and seek suitable nest sites (Thorp 2017, pers. comm.). Colonies may contain from 50 to 400 workers along with the founding queen (Plath 1927, pp. 123-124; Thorp
As with all
As one of the rarest
In summary, Franklin's bumble bee has been found in a wide array of sheltered and exposed habitat types at a broad elevational range, and the species appears to be a generalist forager. Our certainty regarding the Franklin's bumble bee's habitat needs is limited to (1) floral resources for nectaring throughout the colony cycle, and (2) relatively protected areas for breeding and shelter. The habitat elements that Franklin's bumble bee appears to prefer to fulfill those needs mentioned above are relatively flexible, plentiful, and widely distributed.
The Act directs us to determine whether any species is an endangered species or a threatened species because of any factors affecting its continued existence. We completed a comprehensive assessment of the biological status of the Franklin's bumble bee and prepared a report of the assessment (
To assess the Franklin's bumble bee's viability, we used the three conservation biology principles of resiliency, representation, and redundancy, or the 3-Rs (Smith
Our analyses indicate that the resiliency, redundancy, and representation of the Franklin's bumble bee have all declined since the late 1990s. Historically, the species has always been rare and has one of the narrowest distributions of any
The vulnerability resulting from the Franklin's bumble bee's haplodiploid genetic system, as well as the loss in the abundance and spatial extent of its populations, suggest the resiliency, representation, and redundancy of the Franklin's bumble bee have all declined significantly since the late 1990s. The losses in both the number of populations and their spatial extent render the Franklin's bumble bee vulnerable to extinction even without further external stressors (
As part of our status assessment of the Franklin's bumble bee, we looked at potential stressors affecting the species' viability. Our full assessment of the stressors can be found in the SSA Report (U.S. Fish and Wildlife Service 2018). In accordance with section 4(a)(1) of the Act, in reviewing the status of the species to determine if it meets the definition of endangered or of threatened, we determine whether a species is an endangered species or a threatened species because of 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.
Potential stressors that we analyzed for the Franklin's bumble bee generally fit into three groups that correspond with Factors A (habitat loss and fragmentation), C (pathogens), or E (pesticide use, competition with nonnative bees, and effects of small population size). No potential stressors of the Franklin's bumble bee correspond with Factor B. There has never been any indication that the Franklin's bumble bee was at risk of overutilization for commercial, recreational, scientific, or
The 2010 petition identified destruction, degradation, and conversion of habitat as a threat to the Franklin's bumble bee. In our 90-day finding on the 2010 petition (76 FR 56381; September 13, 2011), we noted that the petitioners provided substantial information on threats to the Franklin's bumble bee from the destruction, modification, or curtailment of habitat, primarily due to the potential impacts of natural or prescribed fire. Because the loss and degradation of habitat has been shown to reduce both diversity and abundance in other
Although conversion of natural habitat appears to be the primary cause of bumble bee habitat loss throughout the world (Goulson
Fire caused by both natural and human-caused factors has been an important change on the landscape in the range of the Franklin's bumble bee. Because fire reduces natural succession of forests through the burning of encroaching woody plants, fire is a primary factor in the maintenance of grassland and meadow habitat that can support
Increased fuel loads from fire suppression heighten the potential for catastrophic, large-scale, and high temperature wildfires. Any
Agricultural intensification can result in habitat loss for bumble bees, as these practices often result in the planting of monocultures that tend to provide floral resources for a limited period of time, rather than throughout the colony's life cycle. Agricultural intensification can negatively impact wild bees by reducing floral resource diversity and abundance (U.S. Fish and Wildlife Service 2018, p. 32). Agricultural intensification was determined to be a primary factor leading to the local extirpation and decline of bumble bees in Illinois (Grixti
Within the historical range of the Franklin's bumble bee, total acres in agricultural cropland decreased in all three counties in Oregon (Douglas, Jackson, and Josephine) by greater than 50 percent from 1997 to 2012 (U.S. Department of Agriculture—National Agriculture Statistics Service 2017, pers. comm.; U.S. Fish and Wildlife Service 2018, p. 33). While the total number of acres of agricultural cropland is not synonymous with agricultural intensification (specifically, the expansion of monocultures), a decrease in total acres of agriculture leads us to conclude that agricultural intensification was not likely a factor in the decline of the Franklin's bumble bee. We have no documentation in our files or any direct evidence that agricultural intensification has contributed to the decline of the Franklin's bumble bee. Approximately 42 percent of sites where Franklin's bumble bee have been reported (18 of 43) occur on federally owned land, primarily U.S. Forest Service and Bureau of Land Management land; very little habitat on these lands has been permanently altered or lost through agricultural intensification (U.S. Fish and Wildlife Service 2018, p. 32).
Ongoing urbanization contributes to the loss and fragmentation of natural habitats. Urban gardens and parks provide habitat for some pollinators including bumble bees (Frankie
Generally good habitat conditions currently exist throughout the known historical
Livestock grazing occurs on public land in much of the historical range of the Franklin's bumble bee. Overgrazing by sheep between 1890 and 1920 resulted in trampling vegetation and denuding soils, and grazing is currently evident today in the continuing erosion of the granitic soils of the McDonald Basin, Siskiyou Gap, Mt. Ashland, and the Siskiyou Crest (LaLande 1995, p. 31; T. Atzet 2017, pers. comm.). Several studies on the impacts of livestock grazing on bees suggest an increase in the intensity of livestock grazing affects the species richness of bees (U.S. Fish and Wildlife Service 2018, p. 35). In contrast, grazing, especially by cattle, can play a key positive role in maintaining the abundance and species richness of preferred bumble bee forage (Carvell 2002, p. 44). Evidence of livestock grazing was observed interspersed within abundant floral resources in Franklin's bumble bee habitat during several recent targeted survey efforts (Brooks 1997, pers. comm.; U.S. Fish and Wildlife Service 2016; U.S. Fish and Wildlife Service 2017; Trail 2017, pers. comm.). We have no new information that the timing, location, intensity, or duration of grazing has changed, with the exception of the Cascade-Siskiyou National Monument, where most grazing has been retired (Colyer 2018, pers. comm.). The lack of specific information on the impacts of livestock grazing on the Franklin's bumble bee limits our ability to connect the activity to any specific species' response. Therefore, we do not consider livestock grazing a threat to the Franklin's bumble bee.
Specific impacts of climate change on pollinators are not well understood; most of the existing information on climate change impacts to pollinators comes from studies on butterflies. Studies specifically relating to bumble bees are scant, and we found no climate change information specific to the Franklin's bumble bee. Changes in temperature and precipitation, and the increased frequency of storm events, can affect pollinator population sizes directly, by affecting survival and reproduction (Intergovernmental Panel on Climate Change 2013, entire; Bale
Some studies suggest that pollinators are responding to climate change with recent latitudinal and elevational range shifts such that there is spatial mismatch among plants and their pollinators; while this has been demonstrated in butterflies, it may be less of a factor for bumble bees (U.S. Fish and Wildlife Service 2018, p. 36). As generalist foragers, bumble bees do not require synchrony with a particular plant species, although some bumble bee populations are active earlier in the season than in the past (Bartomeus
Although habitat loss has had negative effects on bumble bees, we conclude it is unlikely to be a main driver of the decline of the Franklin's bumble bee. Habitat appears generally intact and in good condition throughout the known, historical locations of the Franklin's bumble bee and all of the recent focused survey areas(with notable exceptions of the historical habitat lost by the creation of Lake Applegate in the fall of 1980 and soil modification that occurred on a portion of the Gold Hill site in 2004). In our assessment, we found no information to suggest the destruction, degradation, and conversion of habitat was a significant factor in the decline of the Franklin's bumble bee (U.S. Fish and Wildlife Service 2018, pp. 35-37), and we have no information to suggest that habitat destruction or modification will increase in intensity to the point where it will be a primary stressor to the species in its range in the near future.
A number of diseases are known to naturally occur in bumble bee populations. These include the protozoan parasite
Pathogen spillover is a process whereby parasites and pathogens spread from commercial bee colonies to native bee populations (Colla
The effect of pathogens on bumble bees varies from mild to severe (Macfarlane
A virulent strain of
In summary, known pathogens occur within the historical range of the Franklin's bumble bee, and we have evidence of several pathogens infecting closely related species within that range that have also likely affected the Franklin's bumble bee. Although we have no direct evidence of pathogens playing a role in the decline of the Franklin's bumble bee, the disappearance of the Franklin's bumble bee occurred soon after a period of potential exposure to introduced pathogens, particularly
Exposure to pesticides can occur to bumble bees from direct spray or drift, or from gathering or consuming contaminated nectar or pollen (Johansen and Mayer 1990; Morandin
Although the use of land for agricultural purposes has traditionally involved the use of pesticides and other products toxic to bees, one particular class of insecticides known as neonicotinoids have been strongly implicated in the decline of honey bees (
No studies have investigated the effects of pesticide use on the Franklin's bumble bee, and no discoveries have been documented of any Franklin's bumble bees injured or killed by pesticides. The Franklin's bumble bee is a habitat generalist and is not known to have a close association with agricultural lands; therefore, it may have less exposure to pesticides than some other
The Franklin's bumble bee is rare and has always had very small populations (relative to other similar, native bumble bees in the western United States), and likely has low genetic diversity due to the haplodiploidy genetic system it shares with all
The European honey bee (
There is potential for nonnative commercially raised bumble bees to naturalize and outcompete native bumble bees for limited resources such as nesting sites and forage areas. Five commercially reared eastern bumble bee workers and one queen were captured in the wild near greenhouses where commercial bumble bees are used, suggesting this species may have naturalized outside of its native range. In this study, the eastern bumble bee, which has a native range in eastern North America, was detected in western Canada (Ratti and Colla 2010, pp. 29-31). A study in Japan found that nonnative buff-tailed bumble bee colonies, founded by bees that had escaped from commercially produced colonies, had more than four times the mean reproductive output of native bumble bees (Matsumura
Although nonnative
We find that several natural and other human-caused factors contributed to the decline of the Franklin's bumble bee. While it is unlikely that pesticides alone can account for the decline of the Franklin's bumble bee, documented effects of pesticides on closely related
It is likely that several risk factors are acting cumulatively and synergistically on many
Surveys conducted by Dr. Robbin Thorp, other private individuals, University classes and researchers, the U.S. Forest Service, and Bureau of Land Management have significantly contributed to the existing information on Franklin's bumble bee. However, other than those search efforts, we are aware of no conservation efforts or beneficial actions specifically taken to address the threats to the Franklin's bumble bee. Oregon does not include invertebrates on their State endangered species list (Oregon Department of Fish and Wildlife 2018) and California has no bee species included on its list of Threatened and Endangered Invertebrates (California Department of Fish and Wildlife 2018). California has the Franklin's bumble bee listed on its list of Terrestrial and Vernal Pool Invertebrates of Conservation Priority but has no required actions or special protections associated with the listing (California Department of Fish and Wildlife 2017, p. 10). The Franklin's bumble bee is on the species index for the U.S. Forest Service and Bureau of Land Management Interagency Special Status/Sensitive Species Program (ISSSSP). Although the Federal agencies do include the species in survey efforts and conduct general meadow enhancement activities, there are no actions resulting from the ISSSSP classification that address known threats to the Franklin's bumble bee (Interagency Special Status/Sensitive Species Program 2018).
General awareness of colony collapse disorder and increase of conservation efforts for pollinators in general has likely had limited, indirect effects on policies and regulations. The U.S. Forest Service is working to include a section in all biological evaluations to address the effects from agency actions on pollinators. In addition, the Rogue River-Siskiyou National Forest is currently implementing projects and mitigations to create and enhance pollinator habitat (Colyer 2018, pers. comm.). The Oregon Department of Agriculture restricts some potential sources of
Some local municipalities in Oregon enacted legislation against aerial pesticide applications but none in the range of the Franklin's bumble bee (Powell 2017, p. 1; City of Portland 2015, p. 2). However, in the 2017 legislative session, Oregon passed an Avoidance of Adverse Effects on Pollinating Insects law (Oregon Revised Statutes (ORS) 634.045) that is providing enhanced training of licensed and unlicensed pesticide applicators in the State (Melathopoulos 2018, pers. comm.), and could thereby reduce effects of pesticides on pollinators including Franklin's bumble bee.
In January 2017, the U.S. Environmental Protection Agency's Office of Pesticide Programs published their
The U.S. Fish and Wildlife Service implemented a ban on the use of neonicotinoids on all lands in the National Wildlife Refuge System in 2014 (U.S. Fish and Wildlife Service 2014); however, no refuge lands occur within the range of the Franklin's bumble bee. None of these aforementioned measures has appreciably reduced or fully ameliorated threats to the Franklin's bumble bee, as evidenced by the species' acute and rangewide decline.
The significant decrease in abundance and distribution of the Franklin's bumble bee to date has greatly reduced the species' ability to adapt to changing environmental conditions and to guard against further losses of adaptive diversity and potential extinction due to catastrophic events. It also substantially
Section 4 of the Act 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(b)(1)(a), the Secretary is to make endangered or threatened determinations required by subsection 4(a)(1) solely on the basis of the best scientific and commercial data available to him after conducting a review of the status of the species and after taking into account conservation efforts by States or foreign nations. The standards for determining whether a species is endangered or threatened are provided in section 3 of the Act. An endangered species is any species that is “in danger of extinction throughout all or a significant portion of its range.” A threatened species is any species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Franklin's bumble bee. Our assessment did not find habitat loss or modification (Factor A) to be the cause of the decline of the Franklin's bumble bee, and we have no information to suggest that habitat destruction or modification will increase in intensity in the near future. There is no indication that the Franklin's bumble bee was at risk of overutilization for commercial, recreational, scientific, or educational purposes (Factor B). Known pathogens occur within the historical range of the Franklin's bumble bee, and we have evidence of several pathogens (Factor C) infecting closely related species within that range. Although we do not have direct evidence of pathogens playing a role in the decline of the Franklin's bumble bee, the disappearance of the Franklin's bumble bee occurred soon after a period of introduction of new pathogens. Furthermore, documented effects to other closely related species lead many species experts to suspect the effects of pathogens had some connection to the decline of the Franklin's bumble bee. We evaluated existing regulatory mechanisms (Factor D) and conservation measures and their effects on the stressors and the status of the Franklin's bumble bee; we found that the existing regulatory mechanisms or conservation measures in place do not appreciably reduce or ameliorate the existing threats to the species, as evidenced by the species' acute and rangewide decline. Although we have no direct evidence that pesticide use contributed to the decline of the Franklin's bumble bee, confirmed effects to other closely related
The combination of multiple stressors is typically more harmful than a stressor acting alone, and it is likely that several of the stressors mentioned above acted cumulatively and synergistically on the Franklin's bumble bee. Pathogens in combination with pesticides, as well as pathogens in combination with the effects of small population size, may have hastened and amplified the decline of the Franklin's bumble bee to a greater degree than any one of the three factors caused on its own. Although the ultimate source of the decline is unknown, the acute and rangewide decline of the Franklin's bumble bee is undisputable.
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 find that the Franklin's bumble bee is presently in danger of extinction throughout all of its range based on the severity and immediacy of threats currently affecting the species.
The threats of pathogens, pesticides, and small population size are ongoing and rangewide; they will continue to act individually and in combination to decrease the resiliency, redundancy, and representation of the Franklin's bumble bee. The risk of extinction is high because the species has not been found since 2006, and the suspected threats to the species persist. Therefore, on the basis of the best available scientific and commercial information, we propose to list the Franklin's bumble bee as endangered in accordance with sections 3(6) and 4(a)(1) of the Act. We find that a threatened species status is not appropriate for the Franklin's bumble bee because of the extreme loss of abundance of the species, because the threats are occurring rangewide and are not localized, and because the threats are ongoing and expected to continue into the future.
Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that the Franklin's bumble bee is in danger of extinction throughout its range, we find it unnecessary to proceed to an evaluation of potentially significant portions of the range. Where the best available information allows the Services to determine a status for the species rangewide, that determination should be given conclusive weight because a rangewide determination of status more accurately reflects the species' degree of imperilment and better promotes the purposes of the statute. Under this reading, we should first consider whether listing is appropriate based on a rangewide analysis and proceed to conduct a “significant portion of its range” analysis if, and only if, a species does not qualify for listing as either endangered or threatened according to the “all” language. We note that the court in
Although this species has not been found since 2006, we conclude it is premature at this time to determine that the species is extinct absent a more thorough survey effort. We invite public comment on the probability of extinction for this species and will revisit this conclusion as appropriate with respect to available information for the final determination. We recommend expanded future survey efforts to help verify the status of this species.
Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened (“downlisting”) or removal from the List of Endangered and Threatened Wildlife or List of Endangered and Threatened Plants (“delisting”), and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline will be available on our website (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (
Although the Franklin's bumble bee is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.
Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include: Management and any other landscape-altering activities on Federal lands administered by the U.S. Forest Service and Bureau of Land Management; issuance of section 404 Clean Water Act (33 U.S.C. 1251
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.
We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may 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. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the
(1) Recreation, specifically skiing at Mt. Ashland, and use of the Pacific Crest Trail;
(2) Timber sales; and
(3) Livestock grazing.
Based on the best available information, the following actions may potentially result in a violation of section 9 of the Act if they are not authorized in accordance with applicable law; this list is not comprehensive:
(1) Unauthorized handling or collecting of the Franklin's bumble bee;
(2) The unauthorized release of biological control agents that attack any life stage of the Franklin's bumble bee, including the unauthorized use of herbicides, pesticides, or other chemicals in habitats in which the Franklin's bumble bee is known to occur; and
(3) Unauthorized release of nonnative species or native species that carry pathogens, diseases, or fungi that are known or suspected to adversely affect the Franklin's bumble bee where the species is known to occur.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Oregon Fish and Wildlife Office (see
Critical habitat is defined in section 3 of the Act as:
(1) The specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the Act, on which are found those physical or biological features
(a) Essential to the conservation of the species, and
(b) Which may require special management considerations or protection; and
(2) Specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Our regulations at 50 CFR 424.02 define “geographical area occupied by the species” as: An area that may generally be delineated around species' occurrences, as determined by the Secretary of the Interior (
Conservation, as defined under section 3 of the Act, means to use and the use of all methods and procedures that are necessary to bring an endangered or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, and transplantation, and, in the extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act through the requirement that Federal agencies ensure, in consultation with the Service, that any action they authorize, fund, or carry out is not likely to result in the destruction or adverse modification of critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by non-Federal landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) of the Act would apply, but even in the event of a destruction or adverse modification finding, the obligation of the Federal action agency and the landowner is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.
Under the first prong of the Act's definition of critical habitat, areas within the geographical area occupied by the species at the time it was listed are included in a critical habitat designation if they contain physical or biological features (1) which are essential to the conservation of the species and (2) which may require special management considerations or protection. For these areas, critical habitat designations identify, to the extent known using the best scientific and commercial data available, those physical or biological features that are essential to the conservation of the species (such as space, food, cover, and protected habitat). In identifying those physical or biological features within an area, we focus on the specific features that support the life-history needs of the species, including but not limited to, water characteristics, soil type, geological features, prey, vegetation, symbiotic species, or other features. A feature may be a single habitat characteristic, or a more complex combination of habitat characteristics. Features may include habitat characteristics that support ephemeral or dynamic habitat conditions. Features may also be expressed in terms relating to principles of conservation biology, such as patch size, distribution distances, and connectivity.
Under the second prong of the Act's definition of critical habitat, we can designate critical habitat in areas outside the geographical area occupied by the species at the time it is listed, upon a determination that such areas are essential for the conservation of the species. We will determine whether unoccupied areas are essential for the conservation of the species by considering the life-history, status, and conservation needs of the species. This will be further informed by any generalized conservation strategy, criteria, or outline that may have been developed for the species to provide a substantive foundation for identifying which features and specific areas are essential to the conservation of the species and, as a result, the development of the critical habitat designation. For example, an area currently occupied by the species but that was not occupied at the time of listing may be essential to the conservation of the species and may be included in the critical habitat designation.
Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist:
(1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or
(2) Such designation of critical habitat would not be beneficial to the species. The regulations also provide that, in determining whether a designation would not be beneficial, the factors the Service may consider include but are not limited to: Whether the present or threatened destruction, modification, or curtailment of a species' habitat or range is not a threat to the species, or whether any areas meet the definition of “critical habitat” (50 CFR 424.12(a)(1)(ii)).
As discussed above in the threats analysis, there is currently no imminent threat of take attributed to collection or vandalism identified under Factor B for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. In the absence of finding that the designation of critical habitat would increase threats to a species, we next determine whether such designation of critical habitat would be beneficial to the Franklin's bumble bee. For the reasons discussed below, we have determined that designating critical habitat would not be beneficial.
The Franklin's bumble bee was widely distributed throughout its range and considered flexible with regards to habitat requirements. We know that the Franklin's bumble bee needs (1) floral resources for nectaring throughout the colony cycle, and (2) relatively protected areas for breeding and shelter. In addition, because the best available scientific information indicates that the Franklin's bumble bee is a generalist forager, its habitat preferences and needs are relatively plentiful and widely distributed. While
Some general habitat associations of
Since it was first identified in 1921, the Franklin's bumble bee appears to have always been a rare species limited in abundance. In fact, the species has perhaps the most limited range of any
In the Service and National Marine Fisheries Service's response to comments on the February 11, 2016, final rule (81 FR 7414) revising the critical habitat regulations, the Services expressly contemplated a fact pattern where designating critical habitat may not be beneficial to the species: “[I]n some circumstances, a species may be listed because of factors other than threats to its habitat or range, such as disease, and the species may be a habitat generalist. In such a case, on the basis of the existing and revised regulations, it is permissible to determine that critical habitat is not beneficial and, therefore, not prudent” (81 FR 7425). This is the fact pattern we are presented with in the case of the Franklin's bumble bee. In view of the foregoing, we conclude that present or threatened destruction, modification, or curtailment of habitat is not a threat to the Franklin's bumble bee; rather, disease and other manmade factors are likely the primary threat to the species within its habitat. Therefore, in accordance with 50 CFR 424.12(a)(1), we determine that critical habitat is not beneficial and, therefore, not prudent for the Franklin's bumble bee.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
In accordance with the President's memorandum of April 29, 1994 (Government-to-Government Relations with Native American Tribal Governments; 59 FR 22951), Executive Order 13175 (Consultation and Coordination With Indian Tribal Governments), and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to tribes.
A complete list of references cited in this proposed rule is available on the internet at
The primary authors of this proposed rule are the staff members of the Oregon Fish and Wildlife Office and Pacific Region Office in Portland, Oregon.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
(h) * * *
This document was received for publication by the Office of the Federal Register on August 7, 2019.
Bureau of the Census, Department of Commerce.
Notice of public meeting.
The Bureau of the Census (Census Bureau) is giving notice of a meeting of the Census Scientific Advisory Committee (CSAC). The Committee will address policy, research, and technical issues relating to a full range of Census Bureau programs and activities, including communications, decennial, demographic, economic, field operations, geographic, information technology, and statistics. The CSAC will meet in a plenary session on September 12-13, 2019. Last minute changes to the schedule are possible, which could prevent giving advance public notice of schedule adjustments. Please visit the Census Advisory Committees website for the most current meeting agenda at:
September 12-13, 2019. On Thursday, September 12, the meeting will begin at 8:30 a.m. and end at approximately 5 p.m. EDT. On Friday, September 13, the meeting will begin at 8:30 a.m. and end at approximately 2 p.m.
The meeting will be held at the U.S. Census Bureau Auditorium, 4600 Silver Hill Road, Suitland, Maryland 20746.
Kimberly Leonard, External Stakeholder Program Manager, Office of Program, Performance and Stakeholder Integrations,
The members of the CSAC are appointed by the Director, Census Bureau. The Committee provides scientific and technical expertise, as appropriate, to address Census Bureau program needs and objectives. The Committee has been established in accordance with the Federal Advisory Committee Act (Title 5, United States Code, Appendix 2, Section 10).
All meetings are open to the public. A brief period will be set aside at the meeting for public comment on September 13. However, individuals with extensive questions or statements must submit them in writing to:
If you plan to attend the meeting, please register by Monday, September 2, 2019. You may access the online registration from the following link:
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should also be directed to the Committee Liaison Officer as soon as known, and preferably two weeks prior to the meeting.
Please call 301-763-9906 upon arrival at the Census Bureau on the day of the meeting. A photo ID must be presented in order to receive your visitor's badge. Visitors are not allowed beyond the first floor.
The Puerto Rico Industrial Development Company, grantee of FTZ 7, submitted a notification of proposed production activity to the FTZ Board on behalf of Patheon Puerto Rico, Inc. (Patheon), located in Manatí, Puerto Rico. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on August 2, 2019.
Patheon already has authority to produce certain pharmaceutical products within FTZ 7. The current request would add a finished product and foreign status materials/components to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status materials/components and specific finished product described in the submitted notification (as described below) and subsequently authorized by the FTZ Board.
Production under FTZ procedures could exempt Patheon from customs duty payments on the foreign-status materials/components used in export production. On its domestic sales, for the foreign-status materials/components noted below and in the existing scope of authority, Patheon would be able to choose the duty rates during customs entry procedures that apply to empaglifozin and metformin hydrochloride tablets (duty-free). Patheon would be able to avoid duty on foreign-status components which become scrap/waste. Customs duties also could possibly be deferred or
The materials/components sourced from abroad include: Emapaglifozin—active pharmaceutical ingredient; metformin hydrochloride; copovidone; silica, colloidal anhydrous; magnesium stearate; opadry (coating); and, corn (maize) starch (duty rate ranges from duty-free to 6.5%).
The request indicates that certain materials/components are subject to special duties under Section 301 of the Trade Act of 1974 (Section 301), depending on the country of origin. The applicable Section 301 decisions require subject merchandise to be admitted to FTZs in privileged foreign status (19 CFR 146.41).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary and sent to:
A copy of the notification will be available for public inspection in the “Reading Room” section of the Board's website, which is accessible via
For further information, contact Christopher Wedderburn at
On April 10, 2019, CGT U.S., Ltd. submitted a notification of proposed production activity to the FTZ Board for its facility within Subzone 80E, in New Braunfels, Texas.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the
Syngenta Crop Protection, Inc., (Syngenta) submitted a notification of proposed production activity to the FTZ Board for its facility in Omaha, Nebraska. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on August 2, 2019.
Syngenta already has authority to produce agricultural chemical products within FTZ 19. The current request would add finished products and foreign status materials/components to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status materials/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 Syngenta from customs duty payments on the foreign-status materials/components used in export production. On its domestic sales, for the foreign-status materials/components noted below and in the existing scope of authority, Syngenta would be able to choose the duty rates during customs entry procedures that apply to Academy
The components and materials sourced from abroad include cyantraniliprole, fludioxonil, azoxystrobin, pinoxaden, and thiamethoxam (duty rate 6.5%).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary and sent to:
A copy of the notification will be available for public inspection in the “Reading Room” section of the Board's website, which is accessible via
For further information, contact Christopher Wedderburn at
Syngenta Crop Protection, Inc., (Syngenta) submitted a notification of proposed production activity to the FTZ Board for its facilities in Baton Rouge, Louisiana. The notification conforming to the requirements of the regulations of the FTZ Board (15 CFR 400.22) was received on August 2, 2019.
Syngenta already has authority to produce crop protection products including herbicides, fungicides, and insecticides within FTZ 154. The current request would add finished products and foreign status materials/components to the scope of authority. Pursuant to 15 CFR 400.14(b), additional FTZ authority would be limited to the specific foreign-status materials/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 Syngenta from customs duty payments on the foreign-status materials/components used in export production. On its domestic sales, for the foreign-status materials/components noted below and in the existing scope of authority, Syngenta would be able to choose the duty rates during customs entry procedures that apply to Academy
The materials/components sourced from abroad include cyantraniliprole, fludioxonil, azoxystrobin, and pinoxaden (duty rate 6.5%).
Public comment is invited from interested parties. Submissions shall be addressed to the Board's Executive Secretary and sent to:
A copy of the notification will be available for public inspection in the “Reading Room” section of the Board's website, which is accessible via
For further information, contact Christopher Wedderburn at
On April 8, 2019, Michelin North America, Inc., submitted a notification of proposed production activity to the FTZ Board for its facilities within Subzone 38L and Site 5 of FTZ 38, in Woodruff and Laurens, South Carolina.
The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including
On August 28, 2018, in the U.S. District Court for the Southern District of Texas, Juan Jesus De La Rosa (“De La Rosa”) was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). De La Rosa was convicted of violating Section 38 of the AECA by knowingly and willfully aiding and abetting the export and attempting to export from the United States to Mexico approximately 1,000 rounds of 7.62x39mm ammunition, which were designated as defense articles on the United States Munitions List, without the required U.S. Department of State licenses. De La Rosa was sentenced to 27 months in prison, three years of supervised release, and an assessment of $100. De La Rosa also was placed on the U.S. Department of State Debarred List.
The Export Administration Regulations (“EAR” or “Regulations”) are administered and enforced by the U.S. Department of Commerce's Bureau of Industry and Security (“BIS”).
BIS has received notice of De La Rosa's conviction for violating Section 38 of the AECA, and has provided notice and an opportunity for De La Rosa to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from De La Rosa.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny De La Rosa's export privileges under the Regulations for a period of 10 years from the date of De La Rosa's conviction. I have also decided to revoke all BIS-issued licenses in which De La Rosa had an interest at the time of his conviction.
Accordingly, it is hereby
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 Regulations, or engaging in any other activity subject to the Regulations; 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 Regulations, or from any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the 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 the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations 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 Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
On May 23, 2018, in the U.S. District Court for the District of Connecticut, Michael Shapovalov a/k/a Mikhail Shapovalov (“Shapovalov”) was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Shapovalov was convicted of violating Section 38 of the AECA by knowingly and willfully exporting and causing to be exported, from the United States to Latvia, a barrel and breech casing for a Glock carbine pistol with markings “G17 19123 mech-tech made in USA,” items designated as defense articles on the United States Munitions List, without the required U.S. Department of State licenses. Shapovalov was sentenced to 34 months in prison, three years of supervised release, and an assessment of $100.
The Export Administration Regulations (“EAR” or “Regulations”) are administered and enforced by the U.S. Department of Commerce's Bureau of Industry and Security (“BIS”).
BIS has received notice of Shapovalov's conviction for violating Section 38 of the AECA, and has provided notice and an opportunity for Shapovalov to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Shapovalov.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Shapovalov's export privileges under the Regulations for a period of seven years from the date of Shapovalov's conviction. I have also decided to revoke all BIS-issued licenses in which Shapovalov had an interest at the time of his conviction.
Accordingly, it is hereby
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 Regulations, or engaging in any other activity subject to the Regulations; 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 Regulations, or from any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the 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 the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations 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 Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
On October 10, 2018, in the U.S. District Court for the Central District of California, Si Chen, a/k/a Cathy Chen, a/k/a Celia Chen, a/k/a Cecelia Chen, and a/k/a Chunping Ji (“Chen”) was convicted of violating the International Emergency Economic Powers Act (50 U.S.C 1701,
The Export Administration Regulations (“EAR” or “Regulations”) are administered and enforced by the U.S. Department of Commerce's Bureau of Industry and Security (“BIS”).
BIS has received notice of Chen's conviction for violating IEEPA, and has provided notice and an opportunity for Chen to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Chen.
Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Chen's export privileges under the Regulations for a period of 10 years from the date of Chen's conviction. I have also decided to revoke all BIS-issued licenses in which Chen had an interest at the time of her conviction.
Accordingly, it is hereby
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 Regulations, or engaging in any other activity subject to the Regulations; 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 Regulations, or from any other activity subject to the Regulations.
A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;
B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item
C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;
D. Obtain from the Denied Person in the United States any item subject to the Regulations 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 Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that producers or exporters of finished carbon steel flanges (flanges) from Spain subject to this review made sales of subject merchandise at less than normal value during the period of review (POR) February 8, 2017 through May 31, 2018. We invite interested parties to comment on these preliminary results.
Applicable August 13, 2019.
Mark Flessner, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-6312.
On June 14, 2017, we published in the
Commerce exercised its discretion to toll all deadlines affected by the partial federal government closure from December 22, 2018 through the resumption of operations on January 29, 2019.
The scope of the
Commerce conducted this review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act). Export price is calculated in accordance with section 772 of the Act. Normal value is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying these preliminary results,
We preliminarily determine that the following weighted-average dumping margins exist for the period February 8, 2017 through May 31, 2018:
For the rate for non-selected respondents in an administrative review, generally, Commerce looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in a market economy investigation. Under section 735(c)(5)(A) of the Act, the all-others rate is normally “an amount equal to the weighted-average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero or
We intend to disclose the calculations performed for these preliminary results to the parties within five days after public announcement of the preliminary results in accordance with 19 CFR 351.224(b). Interested parties may submit case briefs no later than 30 days after the date of publication of these preliminary results of review.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing must submit a written request to the Assistant Secretary for Enforcement and Compliance, filed electronically via ACCESS. An electronically filed document must be received successfully in its entirety by Commerce's electronic records system, ACCESS, by 5:00 p.m. Eastern Time within 30 days after the date of publication of this notice.
Unless otherwise extended, Commerce intends to issue the final results of this administrative review, which will include the results of its analysis of issues raised in any briefs, within 120 days of publication of these preliminary results of review, pursuant to section 751(a)(3)(A) of the Act.
Upon issuing the final results, Commerce will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries covered by this review.
For entries of subject merchandise during the POR produced by ULMA for which it did not know its merchandise was destined for the United States, we will instruct CBP to liquidate unreviewed entries at the all-others rate if there is no rate for the intermediate company(ies) involved in the transaction.
We intend to issue liquidation instructions to CBP 15 days after publication of the final results of this review.
The following deposit requirements for estimated antidumping duties will be effective upon publication of the notice of final results of this review for all shipments of flanges from Spain entered, or withdrawn from warehouse, for consumption on or after the date of publication as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for the companies under review, will be the rate established in the final results of the review (except, if the rate is zero or
These cash deposit requirements, when imposed, shall remain in effect until further notice.
This notice serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this POR.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
Commerce is issuing and publishing these results in accordance with sections 751(a)(1) and 777(i) of the Act and 19 CFR 351.221(b)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) is conducting an administrative review of the antidumping duty order on oil country tubular goods (OCTG) from India. The period of review (POR) is September 1, 2017 through August 31, 2018. The review covers one producer/exporter of the subject merchandise, GVN Fuels, Ltd. (GVN). We preliminarily determine that GVN had no shipments of subject merchandise during the POR. Interested parties are invited to comment on these preliminary results.
August 13, 2019.
Charlotte Baskin-Gerwitz and Andrew Huston AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4880 or (202) 482-4261, respectively.
In response to Commerce's notice of opportunity to request an administrative review on OCTG from India,
On July 2, 2019, Commerce exercised its discretion to extend the deadline for these preliminary results until August 23, 2019.
The merchandise covered by the order is certain oil country tubular goods (OCTG), which are hollow steel products of circular cross-section, including oil well casing and tubing, of iron (other than cast iron) or steel (both carbon and alloy), whether seamless or welded, regardless of end finish (
Excluded from the scope of the order are: casing or tubing containing 10.5 percent or more by weight of chromium; drill pipe; unattached couplings; and unattached thread protectors.
The merchandise subject to the order is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under item numbers: 7304.29.10.10, 7304.29.10.20, 7304.29.10.30, 7304.29.10.40, 7304.29.10.50, 7304.29.10.60, 7304.29.10.80, 7304.29.20.10, 7304.29.20.20, 7304.29.20.30, 7304.29.20.40, 7304.29.20.50, 7304.29.20.60, 7304.29.20.80, 7304.29.31.10, 7304.29.31.20, 7304.29.31.30, 7304.29.31.40, 7304.29.31.50, 7304.29.31.60, 7304.29.31.80, 7304.29.41.10, 7304.29.41.20, 7304.29.41.30, 7304.29.41.40, 7304.29.41.50,
The merchandise subject to the order may also enter under the following HTSUS item numbers: 7304.39.00.24, 7304.39.00.28, 7304.39.00.32, 7304.39.00.36, 7304.39.00.40, 7304.39.00.44, 7304.39.00.48, 7304.39.00.52, 7304.39.00.56, 7304.39.00.62, 7304.39.00.68, 7304.39.00.72, 7304.39.00.76, 7304.39.00.80, 7304.59.60.00, 7304.59.80.15, 7304.59.80.20, 7304.59.80.25, 7304.59.80.30, 7304.59.80.35, 7304.59.80.40, 7304.59.80.45, 7304.59.80.50, 7304.59.80.55, 7304.59.80.60, 7304.59.80.65, 7304.59.80.70, 7304.59.80.80, 7305.31.40.00, 7305.31.60.90, 7306.30.50.55, 7306.30.50.90, 7306.50.50.50, and 7306.50.50.70.
The HTSUS subheadings above are provided for convenience and customs purposes only. The written description of the scope of the order is dispositive.
Based on record evidence, we preliminarily determine that GVN had no shipments of subject merchandise during the POR. Specifically, CBP indicated that it found no shipments by GVN during the POR.
Interested parties may submit case briefs no later than 30 days after the date of publication of this notice.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, or to participate if one is requested, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce using Enforcement and Compliance's ACCESS system within 30 days after the date of publication of this notice.
All submissions must be filed electronically using ACCESS and served on interested parties.
Unless the deadline is extended, Commerce intends to issue the final results of this administrative review, including the results of its analysis of the issues raised in any written briefs, not later than 120 days after the date of publication of this notice, pursuant to section 751(a)(3)(A) of the Tariff Act of 1930, as amended (the Act).
Commerce clarified its “automatic assessment” regulation on May 6, 2003.
We intend to issue instructions to CBP 15 days after the publication date of the final results of this review.
If the final results of review continue to find that GVN had no shipments during the POR, there will be no change to the existing cash deposit requirements.
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i) of the Act.
National Marine Fisheries Service (NMFS), National Oceanic and
Notice of SEDAR 68 Stock Identification (ID) webinar II for Gulf of Mexico and Atlantic scamp.
The SEDAR 68 assessment of Gulf of Mexico and Atlantic scamp will consist of a Data workshop, a series of assessment webinars, and a Review workshop. See
The SEDAR 68 Stock ID webinar II will be held on Tuesday, September 3, 2019, from 11 a.m. to 1 p.m., Eastern Standard Time.
The meeting will be held via webinar. The webinar is open to members of the public. Those interested in participating should contact Julie A. Neer at SEDAR (see
Julie A. Neer, SEDAR Coordinator; (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 multi-step process including: (1) Data Workshop; (2) Assessment Process utilizing webinars; and (3) Review Workshop. The product of the Data Workshop is a data report that 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 that 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 and NOAA Fisheries Southeast Regional Office, HMS Management Division, and Southeast Fisheries Science Center. Participants include data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and NGO's; International experts; and staff of Councils, Commissions, and state and federal agencies.
The items of discussion in the Stock ID webinars are as follows:
1. Participants will use review genetic studies, growth patterns, existing stock definitions, prior SEDAR stock ID recommendations, and any other relevant information on scamp stock structure.
2. Participants will make recommendations on biological stock structure and define the unit stock or stocks to be addressed through this assessment.
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 physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council 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; public meeting.
The New England Fishery Management Council (Council) is scheduling a public meeting of its Management Strategy Evaluation (MSE) Steering Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.
This meeting will be held on Wednesday, September 4, 2019 at 9:30 a.m.
Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.
The steering committee will discuss terms of reference and types of recommendations for structuring an MSE process that focuses on a Georges Bank Fishery Ecosystem Plan. These recommendations will be made to the Council in December and will include approaches to soliciting stakeholder engagement and facilitating stakeholder participation in the MSE effort. Summaries of previous stakeholder-engaged MSE workshops and the Council's example Fishery Ecosystem Plan (eFEP) framework will be presented at this meeting. Other business may be discussed as necessary.
Although non-emergency issues not contained on this agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. This meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting (webinar).
The Pacific Fishery Management Council's (Pacific Council) Coastal Pelagic Species Management Team (CPSMT) and Coastal Pelagic Species Advisory Subpanel (CPSAS) will hold a webinar meeting to consider agenda items for the September Pacific Council meeting. This webinar is open to the public.
The webinar will be held Thursday, August 29, 2019, from 1 p.m. to 3 p.m., Pacific Daylight Time, or until business for the day has been completed.
The meeting will be held via webinar. A public listening station is available at the Pacific Council office (address below). To attend the webinar, use this link:
Kerry Griffin, Pacific Council; telephone: (503) 820-2409.
The purpose of the meeting is to consider and possibly develop supplemental reports on Ecosystem and Administrative matters on the Pacific Council's September agenda, including a revised essential fish habitat review process (Council Operating Procedure 22). The CPSMT and CPSAS will also discuss future workload planning and assignments.
Although non-emergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed in this document and any issues arising after publication of this document 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 public listening station is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic Fishery Management Council's Summer Flounder, Scup, and Black Sea Bass Advisory Panel will hold a public meeting, jointly with the Atlantic States Marine Fisheries Commission's Summer Flounder, Scup, and Black Sea Bass Advisory Panel.
The meeting will be held on Thursday August 29, 2019, from 10 a.m. until 3:30 p.m.
The meeting will be held at the Double Tree by Hilton Baltimore—BWI Airport, 890 Elkridge Landing Road, Linthicum, MD 21090; telephone: (410) 859-8400.
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The Mid-Atlantic Fishery Management Council's Summer Flounder, Scup, and Black Sea Bass Advisory Panel will meet jointly with the Atlantic States Marine Fisheries Commission's Summer Flounder, Scup, and Black Sea Bass Advisory Panel. The purpose of this meeting is to discuss recent performance of the summer flounder, scup, and black sea bass commercial and recreational fisheries and develop Fishery Performance Reports. These reports will be considered by the Scientific and Statistical Committee, the Monitoring Committee, Mid-Atlantic Fishery Management Council, and Atlantic States Marine Fisheries Commission when setting or reviewing catch and landings limits and management measures for summer flounder, scup, and black sea bass for upcoming years. Advisors will also receive an update on the 2019 operational stock assessments for black sea bass and scup. Other topics addressed during the August meetings
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting (webinar).
The Pacific Fishery Management Council (Pacific Council) will convene a webinar meeting of its Groundfish Management Team (GMT) to discuss items on the Pacific Council's September 2019 meeting agenda. The meeting is open to the public.
The webinar meeting will be held Tuesday, September 3, 2019, from 1 p.m. to 4 p.m., Pacific Daylight Time. The scheduled ending time for the GMT webinar is an estimate, the meeting will adjourn when business for the day is completed.
This meeting will be held via webinar. A public listening station is available at the Pacific Council office (address below). To attend the webinar: (1) Join the GoToWebinar by visiting this link
Todd Phillips, Staff Officer; telephone: (503) 820-2426.
The primary purpose of GMT webinar is to prepare for and develop recommendations for consideration by the Pacific Council at its September 2019 meeting. The GMT will discuss items related to groundfish management, ecosystem matters, and administrative Pacific Council agenda items. A detailed agenda for the webinar will be available on the Pacific Council's website prior to the meeting. The GMT may also address other assignments relating to groundfish management. No management actions will be decided by the GMT.
Although non-emergency issues not contained in the meeting agenda may be discussed, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically listed 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 public listening station is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Mr. Kris Kleinschmidt at (503) 820-2411 at least 10 business days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 58 Assessment Milestone 4 Webinar for Atlantic Cobia.
The SEDAR 58 assessment of the Atlantic stock of Cobia will consist of a series of workshops and webinars: Data Workshop; Assessment Webinars; and a Review
The SEDAR 58-Assessment Milestone 4 Webinar has been scheduled for September 23, 2019, from 9 a.m. to 12 p.m.
Kathleen Howington, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; 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 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
The items of discussion at the Assessment Milestone 4 webinar are as follows:
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.
This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the SAFMC office (see
16 U.S.C. 1801
National Telecommunications and Information Administration, U.S. Department of Commerce.
Notice of public meeting.
The National Telecommunications and Information Administration (NTIA), U.S. Department of Commerce, will host a symposium on September 10, 2019, focusing on the development and implementation of a National Spectrum Strategy, pursuant to the Presidential Memorandum, released on October 25, 2018, on “Developing a Sustainable Spectrum Strategy for America's Future.”
The symposium will be held on September 10, 2019, from 8:30 a.m. to 12:30 p.m. Eastern Daylight Time (EDT).
The symposium will be held at the National Press Club, 529 14th St. NW, Washington, DC 20045.
John Alden, Telecommunications Specialist, Office of Spectrum Management, NTIA, at (202) 482-8046 or
NTIA serves as the President's principal adviser on telecommunications policies pertaining to the Nation's economic and technological advancement and establishes policies concerning use of the radio spectrum by federal agencies. NTIA is hosting a symposium that will focus on implementing and maintaining a sustainable national spectrum strategy that will enable the United States to strengthen its global leadership role in the introduction of wireless telecommunications technologies, services, and innovation, while also supporting the expansion of existing technologies and the nation's homeland security, national defense, and other critical government missions.
Prior to the event, NTIA will post registration information, a detailed agenda, any updates, and other relevant information at:
The meeting will be physically accessible to people with disabilities. Individuals requiring accommodations, such as sign language interpretation or other ancillary aids, should notify Mr. Alden at the contact information listed above at least ten (10) business days before the event.
Office of Postsecondary Education, U.S. Department of Education.
Notice of a modified system of records.
In accordance with the Privacy Act of 1974, as amended (Privacy Act), the Department of Education (Department) publishes this notice of a modified system of records entitled “Fulbright-Hays—Doctoral Dissertation Research Abroad (DDRA) and Seminars Abroad (SA) (18-12-02),” last published in the
Submit your comments on this modified system of records notice on or before September 12, 2019.
This modified system of records notice will become applicable upon publication in the
Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments submitted by fax or by email or those submitted after the comment period. To ensure that we do not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments.
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Sara Starke, International and Foreign Language Education, Office of Postsecondary Education, U.S. Department of Education, 400 Maryland Ave. SW, Washington, DC 20202. Telephone: (202) 453-7681.
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), you may call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
The Department is modifying the section entitled “SYSTEM NAME AND NUMBER” to remove “Faculty Research Abroad (FRA)” and “Fellows” from the system name.
The Department is modifying the section entitled “SECURITY CLASSIFICATION” to indicate that the system is unclassified.
The Department is modifying the section entitled “SYSTEM LOCATION” to reflect the current location within the Office of Postsecondary Education (OPE) as the “International and Foreign Language Education (IFLE)” office; and, to update the Department's address, as applicable.
The Department is modifying the section entitled “SYSTEM MANAGER(S)” to list the system manager's name; to reflect the current location of the system manager within OPE as the “International and Foreign Language Education (IFLE)” office; and, to update the Department's address, as applicable.
The Department is modifying the section entitled “CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM” to include doctoral candidates and to specify that both applicants and selectees are individuals whose information is maintained in the system.
The Department is modifying the section entitled “CATEGORIES OF RECORDS IN THE SYSTEM” to remove the “FRA” (Faculty Research Abroad) program and Social Security numbers, and to indicate that email addresses will be collected in the system.
The Department is modifying the section entitled “RECORD SOURCE CATEGORIES” to clarify that information in the system may also be obtained from other persons or entities from which data is obtained under routine uses set forth in the notice.
The Department is modifying the section entitled “ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND PURPOSES OF SUCH USES” to remove the previous routine use (2) entitled “Disclosure for Use by Other Law Enforcement Agencies” from the list of routine uses of records maintained in the system because the system is not used in a law enforcement capacity.
The Department is modifying newly renumbered routine use (2) entitled “Enforcement Disclosure” to standardize it with other routine uses (permitting similar disclosures) commonly used by the Department in its systems of records notices to explain that if information in the system, either alone or in connection with other information, indicates a violation or potential violation of any applicable statutory, regulatory, or legally binding requirement, the Department may disclose records from the system to an entity charged with investigating or prosecuting those violations or potential violations.
The Department is modifying newly renumbered routine use (3) “
The Department is modifying newly renumbered routine use (5) to standardize it with other routine uses (permitting similar disclosures) commonly used by the Department in its systems of records notices to permit disclosure, in the course of investigation, fact-finding, or adjudication, of records from this system that are relevant and necessary to employee grievances, complaints, or disciplinary actions involving present or former employees, to any party to the grievance, complaint, or action; to the party's counsel or representative; to a witness; or, to a designated fact-finder, mediator, or other person designated to resolve issues or decide the matter.
The Department is modifying newly renumbered routine use (6) to permit the disclosure of records from this system of records to arbitrators to resolve disputes under negotiated grievance procedures or to officials of a labor organization recognized under 5 U.S.C. chapter 71 when relevant and necessary to their duties of exclusive representation.
The Department is modifying newly renumbered routine use (7) to permit the Department to disclose records to DOJ and the Office of Management and Budget (OMB) for assistance in
The Department is modifying newly renumbered routine use (9) to remove language that referenced imposing safeguard requirements on the contractor “before entering into” the contract and that are required under subsection (m) of the Privacy Act. The modified language clarifies that the Department will require, as part of applicable Department contracts, contractors to whom disclosures are made under this routine use to agree to establish and maintain safeguards to protect the security and confidentiality of the disclosed records.
The Department is modifying newly renumbered routine use (10) to remove language that had referred to “Privacy Act safeguards” to clarify that all researchers to whom disclosures are made under this routine use will be required to agree to establish and maintain safeguards to protect the security and confidentiality of the disclosed records.
The Department is modifying newly renumbered routine use (12) to permit the Department to disclose records to the Congressional Budget Office (CBO) as necessary to fulfill the requirements of the Federal Credit Reform Act of 1990, as amended, in accordance with 2 U.S.C. 661b.
Pursuant to the requirements in OMB Memorandum M-17-12 entitled “Preparing for and Responding to a Breach of Personally Identifiable Information,” the Department is adding: Routine use (13) entitled “Disclosure in the Course of Responding to Breach of Data” to permit the Department to disclose records from this system to appropriate agencies, entities, and persons in connection with the Department's efforts to respond to a suspected or confirmed data breach of this system or to prevent, minimize, or remedy harm resulting from such a breach; and, routine use (14) entitled “Disclosure in Assisting another Agency in Responding to a Breach of Data” to permit the Department to disclose records from this system of records in the course of assisting another Federal agency or entity in responding to, or preventing, minimizing, or remedying the risk of harm resulting from, a suspected or confirmed breach of data.
The Department is removing the section entitled “DISCLOSURE TO CONSUMER REPORTING AGENCIES” because the Department will not disclose information in this system of records to consumer reporting agencies.
The Department is modifying the section entitled “POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS” to explain that both hard copy and electronic records are retrieved by an individual's name; and, in the event that an individual's name cannot be located, records can also be retrieved by award number and name of the educational institution.
The Department is modifying the section entitled “POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS” to reference the current, appropriate records schedule, General Records Schedule 1.2: Grant and Cooperative Agreement Records, Items 020 and 021; and, explain that records are destroyed either 3 years (for unsuccessful applications) or 10 years (for successful applications), as applicable, after final action is taken on an applicant's case file, unless longer retention is required for business use.
The Department is modifying the section entitled “ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS” to describe the safeguards used by the Department for hard copy files.
The Department is modifying the sections entitled “RECORD ACCESS PROCEDURES,” “CONTESTING RECORD PROCEDURES,” and “NOTIFICATION PROCEDURES” to define and discuss the information needed to access, contest, or be notified of a record.
The Department is also adding a section entitled “HISTORY” to comply with the requirements in OMB Circular No. A-108.
You may also access documents of the Department published in the
For the reasons discussed in the preamble, the delegatee performing the duties of the Assistant Secretary for Postsecondary Education, U.S. Department of Education (Department), publishes a notice of a modified system of records to read as follows:
Fulbright-Hays—Doctoral Dissertation Research Abroad (DDRA) and Seminars Abroad (SA) (18-12-02).
Unclassified.
International and Foreign Language Education (IFLE), Office of Postsecondary Education, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202.
AppNet, 103 W. Broad Street, Fifth Floor, Falls Church, VA 22046.
Sara Starke, International and Foreign Language Education (IFLE), Office of Postsecondary Education, U.S. Department of Education, 400 Maryland Avenue SW, Washington, DC 20202.
The Mutual Educational and Cultural Exchange Act of 1961, as amended (22 U.S.C. 2451-2458).
The information contained in this system is used for the following purposes: (1) To determine an applicant's qualifications, eligibility, suitability, and feasibility; (2) to award benefits for overseas research; (3) to monitor the progress of the project including its accomplishments; and (4) to demonstrate the programs' effectiveness.
This system contains records on teachers, prospective teachers, or doctoral candidates who apply for or are selected to be recipients for Fulbright-Hays awards to enable them to engage in foreign language and area studies projects overseas.
The system of records consists of a variety of records relating to an individual's application for, and participation in, the Fulbright-Hays DDRA or SA programs. In addition to the individual's name, the system
Information is obtained from the individual on approved application forms and from field readers, and may be secured from the U.S. Department of State, U.S. embassies, binational commissions, the J. William Fulbright Foreign Scholarship Board, and foreign educators and officials. Information in this system also may be obtained from other persons or entities from which data is obtained under routine uses set forth below.
The Department may disclose information contained in a record in this system of records under the routine uses listed in this system of records without the consent of the individual if the disclosure is compatible with the purposes for which the record was collected. These disclosures may be made on a case-by-case basis or, if the Department has complied with the computer matching requirements of the Privacy Act of 1974, as amended (Privacy Act), under a matching agreement.
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(i) The Department, or any of its components;
(ii) Any Department employee in his or her official capacity;
(iii) Any Department employee in his or her individual capacity where the Department of Justice (DOJ) agrees to or has been requested to provide or arrange for representation for the employee;
(iv) Any Department employee in his or her individual capacity where the agency has agreed to represent the employee; or
(v) The United States, where the Department determines that the litigation is likely to affect the Department or any of its components.
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The records are maintained in hardcopy, filed in standard filing cabinets, and in an electronic data warehouse maintained by AppNet and accessible by AppNet, individual participants, participants' institutions, and Department personnel.
Hardcopy and electronic files are retrieved by individual names. In the event an individual's name cannot be located, records can be retrieved by award number and name of educational institution.
All records are retained and disposed of in accordance with General Records Schedule 1.2: Grant and Cooperative Agreement Records (GRS 1.2), Items 020 and 021. Records of successful applications are destroyed, in accordance with GRS 1.2, Item 020, 10 years after final action is taken on the applicant's case file, but longer retention is authorized if required for business use. Records of unsuccessful applications are destroyed, in accordance with GRS 1.2, Item 021, 3 years after final action is taken on the applicant's case file, but longer retention is authorized if required for business use.
All physical access to the site of the Department and the site of the Department's contractor where this system of records is maintained is controlled and monitored by personnel who check each individual entering the building. The computer system employed by AppNet offers a high degree of resistance to tampering and circumvention.
This security system limits data access to Department and contract staff grantees on a “need-to-know” basis, and controls individual users' ability to access and alter records within the system. All users of this system of records are given a unique user ID with personal identifiers. All interactions by individual users with the system are recorded. Hard copy files are locked in file cabinets, and only those with a need-to-know have keys.
If you wish to gain access to records regarding you in this system of records, contact the system manager at the address listed above. Requests must contain the necessary particulars, such as your full name, date of birth, the year of the award, the name of the grantee institution, major country in which you conducted your educational activity, and any other identifying information requested by the Department while processing the request in order to distinguish between individuals with the same name. Your request must meet the requirements of the regulations at 34 CFR 5b.5.
If you wish to contest the content of a record regarding you in this system of records, contact the system manager at the address listed above. Requests should contain your full name, date of birth, the year of the award, the name of the grantee institution, major country in which you conducted your educational activity, and any other identifying information requested by the Department while processing the request in order to distinguish between individuals with the same name. Your request must meet the requirements of the regulations at 34 CFR 5b.7.
If you wish to determine whether a record exists regarding you in the system of records, contact the system manager at the address listed above. Requests must contain the necessary particulars, such as your full name, date of birth, the year of the award, the name of the grantee institution, major country in which you conducted your educational activity, and any other identifying information requested by the Department while processing the request in order to distinguish between individuals with the same name. Your request must meet the requirements of the regulations at 34 CFR 5b.5.
None.
The system of records entitled “Fulbright-Hays—Doctoral Dissertation Research Abroad (DDRA) and Seminars Abroad (SA) (18-12-02),” was last fully published in the
Office of Energy Efficiency and Renewable Energy, Department of Energy (DOE).
Request for information (RFI).
The U.S. Department of Energy (DOE) invites public comment on its Request for Information (RFI) number regarding FY 2019 Office of Energy Efficiency and Renewable Energy (EERE) Bioenergy Technologies Office (BETO) research priorities, as part of its annual planning process. The purpose of this RFI is to solicit feedback from industry, academia, research laboratories, government agencies, and other stakeholders to help ensure research areas are relevant, timely, appropriate for federal government funding, and aligned with Administration priorities.
Responses to the RFI must be received by September 6, 2019.
Interested parties are to submit comments electronically to
Questions may be addressed to: John Cabaniss, 1000 Independence Avenue SW, Washington, DC 20585, 202-287-5531,
Further instruction can be found in the RFI document posted on EERE Exchange.
BETO is seeking information on the following 4 topic areas:
BETO is seeking information related to the development and integration of technologies that could increase the production of cellulosic fuels, cellulosic sugars, and chemicals from corn fiber. BETO, in coordination with DOE's Office of Fossil Energy (FE) is also seeking information about technologies to convert or activate gaseous carbon dioxide emitted from fermentation of corn-starch feedstocks, as well as other gaseous emissions from other biorefinery processes, into fuels and co-products.
BETO is soliciting feedback to help understand the quantity, quality, and sources of generation of food waste in America, as well as options for converting that waste into value-added fuels, chemicals, and power.
BETO is seeking information regarding potential efforts to collect, and potentially pay for, existing high-quality bioenergy datasets that are underused or economically stranded in order to publish on established public databases and potentially bolster the growing bioeconomy with industrially relevant data across the supply chain.
BETO is seeking information on issues related to the interface between cultivation and conversion R&D to develop biofuels and bioproducts from algal biomass.
The RFI is available at:
Pursuant to 10 CFR 1004.11, any person submitting information that he or she believes to be confidential and exempt by law from public disclosure should submit via email two well marked copies: One copy of the document marked “confidential” including all the information believed to be confidential, and one copy of the document marked “non-confidential” with the information believed to be confidential deleted. DOE will make its own determination about the confidential status of the information and treat it according to its determination.
Factors of interest to DOE when evaluating requests to treat submitted information as confidential include: (1) A description of the items; (2) whether and why such items are customarily treated as confidential within the industry; (3) whether the information is generally known by or available from other sources; (4) whether the information has previously been made available to others without obligation concerning its confidentiality; (5) an explanation of the competitive injury to the submitting person that would result from public disclosure; (6) when such information might lose its confidential character due to the passage of time; and (7) why disclosure of the information would be contrary to the public interest.
Federal Energy Regulatory Commission.
Notice of information collection and request for comments.
In compliance with the requirements of the Paperwork Reduction Act of 1995 (PRA), the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the currently approved information collection, FERC-725J (Definition of the Bulk Electric System) which will be submitted to the Office of Management and Budget (OMB) for a review of the information collection requirements.
Comments on the collection of information are due October 15, 2019.
You may submit comments (identified by Docket No. IC19-34-000) by either of the following methods:
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Ellen Brown may be reached by email
—Legal (code 23-0000), $142.86
—File Clerks (code 43-4071), $34.50
—Electrical Engineer (code 17-2071), $68.17
The average hourly burden cost for this collection is $81.84 [($142.86 + $34.50 + $68.17) / 3 = $81.84] and is rounded to $82.00 an hour.
In notice document 2019-16749, beginning on page 38284 in the issue of August 6, 2019, make the following correction:
On page 38285, in the table, on the first line, in column six, the URL
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 following hydroelectric application has been filed with the Commission and is available for public inspection.
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k. Pursuant to section 4.32(b)(7) of 18 CFR of the Commission's regulations, if any resource agency, Indian Tribe, or person believes that an additional scientific study should be conducted in order to form an adequate factual basis for a complete analysis of the application on its merit, the resource agency, Indian Tribe, or person must file a request for a study with the Commission not later than 60 days from the date of filing of the application, and
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The Commission strongly encourages electronic filing. Please file additional study requests and requests for cooperating agency status using the Commission's eFiling system at
m. This application is not ready for environmental analysis at this time.
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The Project is operated in a run-of-river mode with a continuous year round minimum flow of 65 cubic feet per second (cfs) in the bypassed reach. Project operation starts when inflows exceed 665 cfs, the sum of the minimum hydraulic capacity of the turbine (600 cfs) and the minimum flow. All flows greater than 3,165 cfs, which is the sum of the maximum hydraulic capacity of the turbine (3,100 cfs) and the minimum flow, are passed over the spillway.
o. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
You may also register online at
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Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of the notice of ready for environmental analysis.
Take notice that on July 30, 2019, Equitrans, LP (Equitrans), 2200 Energy Drive, Canonsburg, Pennsylvania 15317, filed in Docket No. CP19-493-000 a prior notice request pursuant to sections 157.205, and 157.216 of the Commission's regulations under the Natural Gas Act (NGA), and Equitrans' blanket certificate issued in Docket No. CP96-532-000, to abandon by sale to Peoples Natural Gas Company, LLC approximately 4,287 feet of its TP-7575 Pipeline, located in Allegheny County, Pennsylvania, all as more fully set forth in the application which is on file with the Commission and open to public inspection.
The filing may also be viewed on the web at
Any questions concerning this application may be directed to Matthew Eggerding, Assistant General Counsel, Equitrans, LP, 2200 Energy Drive, Canonsburg, Pennsylvania 15317, by telephone at (412) 553-5786, or by email at
Any person or the Commission's staff may, within 60 days after issuance of the instant notice by the Commission, file pursuant to Rule 214 of the Commission's Procedural Rules (18 CFR 385.214) a motion to intervene or notice of intervention and pursuant to section 157.205 of the regulations under the NGA (18 CFR 157.205), a protest to the request. If no protest is filed within the time allowed therefore, the proposed activity shall be deemed to be authorized effective the day after the time allowed for filing a protest. If a protest is filed and not withdrawn within 30 days after the allowed time for filing a protest, the instant request shall be treated as an application for authorization pursuant to section 7 of the NGA.
Pursuant to section 157.9 of the Commission's rules, 18 CFR 157.9, within 90 days of this Notice the Commission staff will either: Complete its environmental assessment (EA) and place it into the Commission's public record (eLibrary) for this proceeding, or issue a Notice of Schedule for Environmental Review. If a Notice of Schedule for Environmental Review is issued, it will indicate, among other milestones, the anticipated date for the Commission staff's issuance of the final environmental impact statement (FEIS) or EA for this proposal. The filing of the EA in the Commission's public record for this proceeding or the issuance of a Notice of Schedule for Environmental Review will serve to notify federal and state agencies of the timing for the completion of all necessary reviews, and the subsequent need to complete all federal authorizations within 90 days of the date of issuance of the Commission staff's FEIS or EA.
Persons who wish to comment only on the environmental review of this project should submit an original and two copies of their comments to the Secretary of the Commission. Environmental commenters will be placed on the Commission's environmental mailing list, and will be notified of any meetings associated with the Commission's environmental review process. Environmental commenters will not be required to serve copies of filed documents on all other parties.
The Commission strongly encourages electronic filings of comments, protests and interventions in lieu of paper using the eFiling link at
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j. Black Canyon Bliss, LLC filed its request to use the Traditional Licensing Process on February 28, 2019. BCB provided public notice of its request on June 13, 2019. In a letter dated July 15, 2019, the Director of the Division of Hydropower Licensing approved BCB's request to use the Traditional Licensing Process.
k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR, Part 402. We are also initiating consultation with the Idaho State Historic Preservation Officer, as required by section 106, National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.
l. With this notice, we are designating BCB as the Commission's non-federal representative for carrying out informal consultation pursuant to section 7 of the Endangered Species Act; and consultation pursuant to section 106 of the National Historic Preservation Act.
m. BCB filed a Pre-Application Document (PAD) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website (
o. The licensee states its unequivocal intent to submit an application for a new license for Project No. 8866. Pursuant to 18 CFR 16.8, 16.9, and 16.10 each application for a new license and any competing license applications must be filed with the Commission at least 24 months prior to the expiration of the existing license. All applications for license for this project must be filed by March 1, 2022.
p. Register online 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 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 corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant to the merits of a contested proceeding, to deliver to the Secretary of the Commission, a copy of the communication, if written, or a summary of the substance of any oral communication.
Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the official service list for the applicable
Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e)(1)(v).
The following is a list of off-the-record communications recently received by the Secretary of the Commission. The communications listed are grouped by docket numbers in ascending order. These filings are available for electronic review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
This is a supplemental notice in the above-referenced Citizens Energy Corporation's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is August 26, 2019.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Environmental Protection Agency (EPA).
Notice of conference.
The Environmental Protection Agency (EPA) announces its Twelfth Conference on Air Quality Modeling. Such a conference is required by section 320 of the Clean Air Act (CAA) to be held every 3 years. The purposes of the Twelfth Conference are to provide an overview of the latest features of the currently preferred air quality models and to provide a forum for public review and comment on potential revisions to the way the Agency determines and applies the appropriate air quality models in the future.
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George Bridgers, Environmental Protection Agency, Office of Air Quality Planning and Standards, Air Quality Assessment Division, Mail Code C439-01, Research Triangle Park, NC 27711; telephone: (919) 541-5563; fax: (919) 541-0044; email address:
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2019-0454, at
Do not submit information that you consider to be CBI or otherwise protected through
If you have any questions about CBI or the procedures for claiming CBI, please consult the person identified in the
Additional information and a more detailed agenda are electronically available at
The conference will be held in the EPA Auditorium, Room C111, 109 T.W. Alexander Drive, Research Triangle Park, NC 27711.
The
The EPA originally published the
On July 29, 2015, the EPA proposed the revisions to the
The Eleventh Conference on Air Quality Modeling was held August 12-13, 2015, in continuing compliance with CAA section 320. This conference included the public hearing for the proposed revisions to the
The 2015 proposed revisions to the
The Twelfth Conference on Air Quality Modeling will be open to the public; no admission fee is charged and there is no formal registration. The conference will begin the first morning with introductory remarks by the presiding EPA official. The following topics will be presented:
1. Conference overview;
2. Currently preferred air quality models status and updates;
3. Expert panel discussions and invited presentations on model/technique enhancements:
4. Model Clearinghouse and modeling guidance updates; and
5. Other presentations by the public.
Those wishing to speak at the conference, whether to volunteer a presentation on a special topic or to offer general comment on any of the modeling techniques scheduled for presentation, should contact us at the address given in the
The conference will be conducted informally and chaired by an EPA official. There will be no sworn testimony or cross examination. A verbatim transcript of the conference proceedings will be produced and placed in the docket. Speakers should bring extra copies of their presentation for inclusion in the docket and for the convenience of the recorder. Speakers will also be permitted to enter written comments into the record. Additional written statements or comments should be sent to the OAR Regulatory Docket (see
Environmental Protection Agency (EPA).
Notice.
There will be a 4-day, public, in-person meeting of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) Scientific Advisory Panel (SAP) to consider and review the Approaches for Quantitative Use of Surface Water Monitoring Data in Pesticide Drinking Water Assessments. Preceding the in-person meeting, there will be a preparatory, public, virtual meeting, conducted via teleconference and webcast using Adobe Connect, to consider the scope and clarity of the draft charge questions for this peer review. In addition, EPA is requesting nominations of prospective candidates for service as ad hoc reviewers to assist the FIFRA SAP with this review. Any interested person or organization may nominate qualified individuals to be considered as prospective candidates for this review by following the instructions provided in this notice.
Submit your written comments, identified by docket identification (ID) number EPA-HQ-OPP-2019-0417, by one of the following methods:
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Additional information on commenting or visiting the docket, along with more information about dockets generally, is available at
Tamue L. Gibson, MS, DFO, Office of Science Coordination and Policy (7201M), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; telephone number: 202-564-7642; email address:
This action is directed to the public in general. This action may be of interest to persons who are or may be required to conduct testing of chemical substances under the Federal Food, Drug, and Cosmetic Act (FFDCA) and FIFRA. Since other entities may also be interested, the Agency has not attempted to describe all the specific
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As part of a broader process for developing a pool of candidates for each review, FIFRA SAP staff routinely solicits the stakeholder community for nominations of prospective candidates for service as ad hoc reviewers. Any interested person or organization may nominate qualified individuals to be considered as prospective candidates for a specific topic. Individuals nominated for this meeting should have expertise in one or more of the following areas: (i) Statistician (experience in water quality data—preferably pesticides); (ii) environmental exposure scientist (experience in aquatic modeling preferably); (iii) environmental risk assessor (experience in pesticides, environmental fate of pesticides); (iv) water quality expert (experience in pesticides); (v) water quality monitoring specialist; (vi) hydrologist; (vii) aquatic modeler; (viii) aquatic model developer; and (ix) GIS specialist. Nominees should be scientists who have sufficient professional qualifications, including training and experience, to provide expert comments on the scientific issues for this review. Nominees should be identified by name, occupation, position, address, email address, and telephone number. Nominations should be provided to the DFO listed under
The selection of scientists to serve on a FIFRA SAP review is based on the function of the Panel and the expertise needed to address the Agency's charge to the Panel. No interested scientists shall be ineligible to serve by reason of their membership on any other advisory committee to a Federal department or agency or their employment by a Federal department or agency, except EPA. Other factors considered during the selection process include availability of the potential reviewer to fully participate in the Panel's review, absence of any conflicts of interest or appearance of loss of impartiality, independence with respect to the matters under review, and lack of bias. Although financial conflicts of interest, the appearance of loss of impartiality, lack of independence, and bias may result in disqualification, the absence of such concerns does not assure that a candidate will be selected to serve on a FIFRA SAP review. Numerous qualified candidates are identified for each review; therefore, selection decisions involve carefully weighing a number of factors, including the candidates' areas of expertise and professional qualifications and achieving an overall balance of different scientific perspectives on the Panel. In order to have the collective breadth of experience needed to address the Agency's charge for this review, the Agency anticipates selecting approximately 12 ad hoc scientists.
FIFRA SAP members and ad hoc reviewers are subject to the provisions of the Standards of Ethical Conduct for Employees of the Executive Branch at 5 Code of Federal Regulations Part 2635, conflict of interest statutes in Title 18 of the United States Code, and related regulations. In anticipation of these requirements, prospective candidates for service on FIFRA SAP will be asked to submit confidential financial information which shall fully disclose, among other financial interests, the candidate's employment, stocks, and bonds, and where applicable, sources of research support. EPA will evaluate the candidate's financial disclosure form to assess whether there are financial conflicts of interest, appearance of a loss of impartiality, or any prior involvement with the development of the documents under consideration (including previous scientific peer review) before the candidate is considered further for service on FIFRA SAP. Those who are selected from the pool of prospective candidates will be asked to attend the public meetings and to participate in the discussion of key issues and assumptions at these meetings. In addition, they will be asked to review and to help finalize the meeting minutes and final report. The list of FIFRA SAP members and ad hoc reviewers participating at this meeting will be posted on the FIFRA SAP website at
You may participate in the in-person meeting by following the instructions in this unit. To ensure proper receipt of comments, nominations or other requests by EPA, it is imperative that you identify docket ID number EPA-HQ-OPP-2019-0417 in the subject line on the first page of your request.
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Registration for the preparatory virtual meeting is required. To participate by listening or making a comment during this meeting, please visit:
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The FIFRA SAP serves as one of the primary scientific peer review mechanisms of EPA's Office of Chemical Safety and Pollution Prevention (OCSPP) and is structured to provide independent scientific advice, information and recommendations to the EPA Administrator on pesticides and pesticide-related issues as to the impact of regulatory actions on human health and the environment. FIFRA SAP is a Federal advisory committee established in 1975 under FIFRA that operates in accordance with requirements of the Federal Advisory Committee Act (5 U.S.C. Appendix). The FIFRA SAP is composed of a permanent panel consisting of seven members who are appointed by the EPA Administrator from nominees provided by the National Institutes of Health (NIH) and the National Science Foundation (NSF). FIFRA established a Science Review Board (SRB) consisting of at least 60 scientists who are available to FIFRA SAP on an ad hoc basis to assist in reviews conducted by FIFRA SAP. As a scientific peer review mechanism, FIFRA SAP provides comments, evaluations, and recommendations to improve the effectiveness and quality of analyses made by Agency scientists. Members of FIFRA SAP are scientists who have sufficient professional qualifications, including training and experience, to provide expert advice and recommendation to the Agency.
Pesticides are regulated in the U.S. under both FIFRA and FFDCA. In 1996, Congress passed the Food Quality Protection Act (FQPA) which amended both FIFRA and FFDCA. Under FQPA, for human health, EPA must consider combined exposures (
Recently, EPA developed a drinking water framework document that describes the existing and longstanding continuum of approaches used to assess pesticide exposure in drinking water. EPA used a tiered approach, which began with simple and conservative assumptions and moved towards more refined, less conservative assumptions and approaches, as needed. The most refined tiers considered the use of surface water monitoring to estimate pesticide concentrations. Historically, EPA has generally used surface water monitoring for characterization and not to estimate pesticide concentrations. Pesticide surface water monitoring data rarely have been used as a quantitative measure of exposure in drinking water, but rather are typically used as a line of evidence to support the conceptual exposure model or ground truth model estimated concentrations.
Further, most surface water monitoring programs typically collect samples on a nondaily basis, such as weekly or biweekly, even in relatively high-sampling frequency programs. Based on EPA's review of available surface water monitoring data, it is not uncommon for monitoring sites to be sampled once per year or quarterly, and in many cases, the same monitoring sites are not sampled every year. The quantitative use of pesticide surface water monitoring data in drinking water assessments requires an understanding of the impact of numerous variables on the frequency and magnitude of pesticide occurrence (
The Agency is interested in using surface water monitoring data to confidently estimate pesticide concentrations in surface water that may be sourced by community water systems.
Specifically, the Agency is seeking advice and recommendation from the FIFRA SAP on scientific issues associated with the evaluation and utility of SEAsonalWAVEQ with EXtended capabilities model (SEAWAVE-QEX), long-term sampling bias factors, watershed regressions, and optimization of short-term sampling bias factors.
EPA has a method for better utilizing available pesticide surface water quality monitoring data that are temporally and spatially limited for estimating upper-bound concentrations relevant for use in drinking water assessments. As part of the SAP, EPA is soliciting comments from the panel on approaches for quantitative use of surface water monitoring data in its drinking water assessments.
The EPA's background paper, the supporting materials, and draft charge/questions to FIFRA SAP will be
The FIFRA SAP will prepare meeting minutes summarizing its recommendations to the Agency approximately 90 days after the meeting. The meeting minutes will be posted on the FIFRA SAP website at
7 U.S.C. 136
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995, 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. Pursuant to the Small Business Paperwork Relief Act of 2002, the FCC seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
The Commission may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (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 September 12, 2019. If you anticipate that you will be submitting comments but find it difficult to do so with the period of time allowed by this notice, you should advise the contacts listed 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
As part of its continuing effort to reduce paperwork burdens, as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the FCC invited the general public and other Federal Agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's burden estimates; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology. Pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), the FCC seeks specific comment on how it might “further reduce the information collection burden for small business concerns with fewer than 25 employees.”
The information collection requirements that are approved under this information collection are contained in 47 CFR 95.1225(b) and (c), 95.1217(a)(3) and (c), 95.1223 and 95.1225 which relate to the Medical Device Radiocommunication Service (MedRadio).
The information is necessary to allow the coordinator and parties using the database to contact other users to verify information and resolve potential conflicts. Each user is responsible for determining in advance whether new devices are likely to cause or be susceptible to interference from devices already registered in the coordination database.
Board of Governors of the Federal Reserve System.
The Board of Governors of the Federal Reserve System (Board) is adopting a proposal to extend for three years, without revision, the Recordkeeping Provisions Associated with the Interagency Statement on Complex Structured Finance Activities (FR 4022; OMB No. 7100-0311).
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551, (202) 452-3829.
Office of Management and Budget (OMB) Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503, or by fax to (202) 395-6974.
A copy of the Paperwork Reduction Act (PRA) OMB submission, including the reporting form and instructions, supporting statement, and other documentation will be placed into OMB's public docket files. These documents also are available on the Board's public website at
On June 15, 1984, OMB delegated to the Board authority under the PRA to approve and assign OMB control numbers to collections of information conducted or sponsored by the Board. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the PRA Submission, supporting statements, and approved collection of information instrument(s) are placed into OMB's public docket files.
The companies listed in this notice have applied to the Board for approval, pursuant to the Home Owners' Loan Act (12 U.S.C. 1461
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 application also will 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 HOLA (12 U.S.C. 1467a(e)). 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 10(c)(4)(B) of the HOLA (12 U.S.C. 1467a(c)(4)(B)). 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 September 10, 2019.
Board of Governors of the Federal Reserve System.
The Board of Governors of the Federal Reserve System (Board) is adopting a proposal to extend for three years, with revision, the Reporting Requirements Associated with Regulation Y (Extension of Time to Conform to the Volcker Rule) (FR Y-1; OMB No. 7100-0333).
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551, (202) 452-3829.
Office of Management and Budget (OMB) Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503 or by fax to (202) 395-6974.
A copy of the PRA OMB submission, including the reporting form and instructions, supporting statement, and other documentation will be placed into OMB's public docket files. These documents also are available on the Board's public website at
On June 15, 1984, OMB delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve and assign OMB control numbers to collections of information conducted or sponsored by the Board. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the PRA Submission, supporting statements, and approved collection of information instrument(s) are placed into OMB's public docket files.
Section 225.181(c) requires an application for an extension by or with respect to a new banking entity or an extension of the transition period for illiquid funds to (1) be submitted in writing to the Board at least 180 days prior to the expiration of the applicable time period, (2) provide the reasons why the banking entity believes the extension should be granted, and (3) provide a detailed explanation of the banking entity's plan for divesting or conforming the activity or investment(s). A request by a banking entity also must address the relevant factors governing Board determinations set out in sections 225.181(d).
Additionally, Supervision and Regulation Letter 16-18 (SR Letter 16-18),
• A list or simple chart of illiquid funds for which an extension is sought,
• A short description of each fund, including the investment strategy and types of investments made by each fund, which entity within the firm holds the investment, the size of each fund, the total exposure of the banking entity to each fund, the date by which each remaining illiquid fund is expected to mature by its terms or be conformed to section 13 of the BHC Act, and the banking entity's relationship with the fund (for example, general partner, sponsor, investment adviser, investor),
• A description of the banking entity's specific efforts to divest or conform its illiquid funds, including a description of the overall covered funds (both liquid and illiquid) that have been divested or conformed to date, the progress that has been made towards divesting or conforming the investments for which an extension is being sought (for example, the number of funds sold, the number of funds that continue to be held, and the amount of investments remaining in each fund and in aggregate),
• A certification by the General Counsel or Chief Compliance Officer of the entity that sponsors or invests in the illiquid funds that each fund meets the definition of illiquid funds in section 13 of the BHC Act and sections 225.180-.181 of Regulation Y, including that the extension is necessary to fulfill a contractual obligation of the banking entity that was in effect on May 1, 2010, and
• The length of the requested extension of the conformance period and a description of the banking entity's plan for divesting or conforming each illiquid fund prior to the end of the requested extension period.
SR Letter 16-18 further provides that such a request should be submitted in writing to the appropriate Federal Reserve Bank and that the banking entity should provide the name, phone number, and email address of the banking entity's point of contact for the request. Additionally, SR Letter 16-18 provides that, in the case where the banking entity that sponsors or invests in the illiquid fund is supervised primarily by another federal banking agency, the Securities and Exchange Commission, or the Commodity Futures Trading Commission, the top-tier banking entity should also provide a copy of the extension request to the relevant agency for the subsidiary banking entity.
Section 225.182(c) requires an application for an extension by a nonbank financial company supervised by the Board to (1) be submitted in writing to the Board at least 180 days prior to the expiration of the applicable time period, (2) provide the reasons why the nonbank financial company supervised by the Board believes the extension should be granted, and (3) provide a detailed explanation of the company's plan for coming into compliance with the requirements of the Volcker Rule. A request by nonbank financial company supervised by the Board also must address the relevant factors governing Board determinations set out in section 225.182(d).
Information required to be submitted in order to obtain an extension of time to conform activities to the Volcker Rule may include:
• The terms of private contractual obligations,
• The liquid or illiquid nature of assets proposed to be divested by the regulated entity,
• The total exposure of the covered entity to the activity or investment, and its materiality to the institution,
• The risks and costs of disposing of, or maintaining, the activity or investment, or
• The impact of divestiture or conformance of the activity or investment on any duty owed by the institution to a client, customer, or counterparty.
This information is the type of confidential commercial and financial information that may be withheld under exemption 4 of the Freedom of Information Act (5 U.S.C. 552(b)(4)). As required information, it may be withheld under exemption 4 only if public disclosure could result in substantial competitive harm to the submitting institution.
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 September 11, 2019.
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Board of Governors of the Federal Reserve System.
The Board of Governors of the Federal Reserve System (Board) is adopting a proposal to extend for three years, without revision, the Written Security Program for State Member Banks (FR 4004; OMB No. 7100-0112).
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551, (202) 452-3829.
Office of Management and Budget (OMB) Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503 or by fax to (202) 395-6974.
On June 15, 1984, OMB delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve and assign OMB control numbers to collection of information requests and requirements conducted or sponsored by the Board. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the PRA Submission, supporting statements and approved collection of information instrument(s) are placed into OMB's public docket files. The Board may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
Because there is no reporting requirement associated with this recordkeeping requirement, the issue of confidentiality does not normally arise. If a bank's written security program were retained during the course of an examination, it may be exempt from disclosure under exemption 8 of the Freedom of Information Act (FOIA), which protects bank examination material.
Board of Governors of the Federal Reserve System.
The Board of Governors of the Federal Reserve System (Board) is adopting a proposal to extend for three years, with revision, the Request for Extension of Time to Dispose of Assets Acquired in Satisfaction of Debts Previously Contracted (FR 4006; OMB No. 7100-0129).
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551, (202) 452-3829.
Office of Management and Budget (OMB) Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235, 725 17th Street NW, Washington, DC 20503 or by fax to (202) 395-6974.
A copy of the PRA OMB submission, including the reporting form and instructions, supporting statement, and other documentation will be placed into OMB's public docket files. These documents also are available on the Federal Reserve Board's public website at
On June 15, 1984, OMB delegated to the Board authority under the Paperwork Reduction Act (PRA) to approve and assign OMB control numbers to collection of information conducted or sponsored by the Board. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the PRA Submission, supporting statements and approved collection of information instrument(s) are placed into OMB's public docket files.
The companies listed in this notice have applied to the Board for approval,
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 September 10, 2019.
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Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division has submitted to the Office of Management and Budget (OMB) a request to review and approve a revision and renewal of a previously approved information collection requirement regarding extraordinary contractual action requests.
Submit comments on or before September 12, 2019.
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to:
Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for GSA, Room 10236, NEOB, Washington, DC 20503 or at
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Ms. Cecelia L. Davis, Procurement Analyst, at 202-219-0202 or email at
9000-0029, Extraordinary Contractual Action Requests.
FAR subpart 50.1 prescribes policies and procedures that allow contracts to be entered into, amended, or modified in order to facilitate national defense under the extraordinary emergency authority granted under 50 U.S.C. 1431
This authority applies to the Government Printing Office; the Department of Homeland Security; the Tennessee Valley Authority; the National Aeronautics and Space Administration; the Department of Defense; the Department of the Army; the Department of the Navy; the Department of the Air Force; the Department of the Treasury; the Department of the Interior; the Department of Agriculture; the Department of Commerce; and the Department of Transportation. Also included is the Department of Energy for functions transferred to that Department from other authorized agencies and any other agency that may be authorized by the President.
In order for a contractor to be granted relief under the FAR, specific evidence must be submitted which supports the firm's assertion that relief is appropriate and that the matter cannot be disposed of under the terms of the contract.
FAR 50.103-3 specifies the minimum information that a contractor must include in a request for contract adjustment in accordance with FAR 50-103-1 and 50.103-2.
FAR 50-103-4 sets forth additional information that the contracting officer or other agency official may request from the contractor to support any request made under FAR 50.103-3.
FAR 50.104-3 sets forth the information that the contractor shall include in a request for the indemnification clause to cover unusually hazardous or nuclear risks.
FAR 52.250-1, Indemnification under Public Law 850804, requires in paragraph (g) that the contractor shall promptly notify the contracting officer of any claim or action against, or loss
The information is used by the Government to determine if relief can be granted under FAR and to determine the appropriate type and amount of relief.
A 60-day notice was published in the
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled Stakeholder Interviews for the Evaluation of the World Trade Center Health Program for Impact Assessment and Strategic Planning for Translational Research, to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on April 8, 2019 to obtain comments from the public and affected agencies. The WTCHP is administered by the CDC/National Institute for Occupational Safety and Health (NIOSH). CDC did not receive comments related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) 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;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) 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) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Stakeholder Interviews for the Evaluation of the World Trade Center Health Program for Impact Assessment and Strategic Planning for Translational Research—New—National Institute for Occupational Safety and Health (NIOSH), Centers for Disease Control and Prevention (CDC).
The World Trade Center Health Program (WTCHP) was established by the James Zadroga 9/11 Health and Compensation Act of 2010, Public Law 111-347 (hereafter referred to as “the Zadroga Act”). Under subtitle C, the Zadroga Act requires the establishment of a research program on health conditions resulting from the 9/11 terrorist attacks. The Research to Care (RTC) model is the strategic framework employed by the WTCHP to prioritize, conduct, and assess research that informs excellence in clinical care for the population of responders and survivors affected by the 9/11 attacks in New York City. It is the focus of this assessment.
The RTC model assumes the collective involvement of different WTCHP stakeholders, including members, researchers, clinicians, and program administrators. It accounts for a variety of inputs that can affect the progress and impact of WTCHP research. These inputs include people and organizations (
In 2016, NIOSH contracted with the RAND Corporation to evaluate the WTCHP RTC model including the research investments to date and the effectiveness with which the Program translates its research to different stakeholder groups. This work will ultimately provide guidance for the WTCHP on strategic directions, as well as produce generalizable knowledge about the translation of research into improved outcomes for individuals and populations exposed to disasters such as the 9/11 attacks. As a part of this evaluation, we will hold a series of interviews with representatives of different stakeholder groups to explore their perspectives on translational research in the context of the WTCHP. These interviews are necessary to gather information on the translation of WTCHP-supported research into better care for members, the impact of this research, and stakeholders' views on future directions for the program. Interview responses will be incorporated into RAND's overall assessment of the WTCHP program's
Specific topics to be addressed in the interviews will include:
• Stakeholder views on key findings from a large systematic review of WTC-related research conducted in a separate part of this evaluation.
• Adherence of WTCHP-supported research to key principles of translational research: Relevance, transparency, and usefulness of the research.
• Examples of use of the research.
• Impact of the research on program outcomes as defined by the Research-to-Care logic model.
• Opportunities for future directions for the WTCHP, which is funded through 2090.
OMB approval is requested for one year. Participation is voluntary, and there are no costs to respondents other than their time. The total estimated annualized burden is 17 hours.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled Million Hearts® Hospital/Health System Recognition Program to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on April 2, 2019 to obtain comments from the public and affected agencies. CDC received one non-substantive comment. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) 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;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) 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) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Million Hearts® Hospital/Health System Recognition Program—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
Million Hearts® is pleased to announce the upcoming launch of the Million Hearts® Hospital/Health System Recognition Program, a program that recognizes institutions working to systematically improve the cardiovascular health of the population and communities they serve through the priority areas of Keeping People Healthy, Optimizing Care, Improving Outcomes for Priority Populations, and Innovating for Health. Heart disease, stroke and other cardiovascular diseases (CVDs) kill over 800,000 Americans each year, accounting for one in every three deaths. CVD is the nation's number one killer among both men and women and the leading cause of health disparities across the population. Million Hearts®, a national, public-private initiative co-led by the Centers
CDC is requesting approval for 297 annual burden hours. There are no costs to respondents other than their time.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled Comprehensive HIV Prevention and Care for Men Who Have Sex with Men of Color. This study is designed to support state and local health departments to develop and implement demonstration projects for provision of comprehensive human immunodeficiency virus (HIV) prevention and care services for men who have sex with men (MSM) of color by creating a collaborative with community based organizations (CBOs), clinics and other health care providers, and behavioral health and social services providers in their jurisdiction.
CDC must receive written comments on or before October 15, 2019.
You may submit comments, identified by Docket No. CDC-2019-0065 by any of the following methods:
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To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
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,
5. Assess information collection costs.
Comprehensive HIV Prevention and Care for Men Who Have Sex With Men of Color (OMB Control No. 0920-1178, Exp. 4/30/2020)—Extension—National
Approximately 40,000 people in the United States are newly infected with HIV each year. Gay, bisexual, and other men who have sex with men (MSM) remain the population most affected by HIV infection in the United States (US). Among MSM, those who are black and Hispanic comprise 64% of all new infections. Goals of the National HIV Prevention Strategy and the new initiative “Ending the HIV Epidemic: A Plan for America” include increasing the number of MSM of color living with HIV infection who achieve HIV viral suppression with antiretroviral treatment (ART), and decreasing the number of new HIV infections among MSM of color at risk of acquiring an HIV infection.
Achieving these outcomes requires that men utilize a broad variety of HIV prevention and care services. The continuum of HIV prevention services includes HIV testing, offering HIV-negative men at risk for acquiring HIV infection biomedical interventions such as preexposure prophylaxis (PrEP) or postexposure prophylaxis (PEP), prescribing the medications needed for PrEP or PEP, adhering to these medications as prescribed, returning for follow-up visits to support adherence, and monitoring potential medication side effects. Lab-based Antigen/Antibody HIV testing is recommended because it is the most sensitive HIV diagnostic test, allowing acute HIV infection to be diagnosed, and allowing health departments to prioritize initiation of treatment early in the course of infection to improve long-term health outcomes and prevent secondary HIV transmission. State and local health departments are authorized to provide HIV testing, prevention, and care services, and are essential partners in carrying out Thrive's programmatic goals. The continuum of HIV care services includes HIV testing and notifying HIV-positive men of their results, linking HIV-positive men to their initial HIV clinic visit, prescribing antiretroviral medications to treat HIV infection, adhering to antiretroviral medications, being retained or re-engaged in care, and achieving HIV viral suppression.
These services will be provided by a community collaborative led by the health department, which consists of several partners: Community-based organizations (CBOs), healthcare providers, behavioral healthcare providers, and social service providers. But, because of the fragmented nature of U.S. healthcare system, and the independent management and diverse funding streams and administration of each collaborative member, the health departments will need to work cooperatively with CDC to form and sustain this collaborative and to provide technical assistance and support for them to deliver high quality HIV prevention and care services to men who require them. CDC needs to understand facilitators and barriers to developing and sustaining a community collaborative to guide the technical assistance it provides to the collaborative so it can optimally deliver all of the required HIV prevention and care services to all men who require them.
Because many of the service providers in the collaborative are not part of the health department organizational structure or co-located within a health department facility or clinic, the health departments will support navigators to help MSM of color to utilize all of the services. In order to provide technical assistance to ensure effective navigation models, CDC must understand the characteristics of the various models; how they integrate service utilization within the collaborative structure, and the number of men who they assist in utilizing services. CDC requests approval for 1,543 annual burden hours. There are no other costs to respondents other than their time.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing efforts to reduce public burden and maximize the utility of government information, 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. This notice invites comment on a Generic Information Collection Request for Cognitive Testing and Pilot Testing for the National Center for Chronic Disease Prevention and Health Promotion. A generic clearance is needed to support methodological studies that improve information quality and the efficiency of information collection.
CDC must receive written comments on or before October 15, 2019.
You may submit comments, identified by Docket No. CDC-2019-0066 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-D74, Atlanta, Georgia 30329; phone: 404-639-7118; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
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,
5. Assess information collection costs.
Generic Information Collection Request (ICR) for Cognitive Testing and Pilot Testing for the National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP)—New—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
CDC's National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP) plans to establish a generic clearance to support information collection for cognitive testing and pilot testing activities. Information collections that support the Behavioral Risk Factor Surveillance System (BRFSS) and other NCCDPHP programs are expected to be the major focus of activity under this generic. Additional information collections may also be considered for submission through this generic clearance if they are relevant to BRFSS and NCCDPHP programs or collaborations.
Cognitive testing and pilot testing are methodological procedures conducted to prepare for a large scale or key information collection. Cognitive and pilot testing activities are designed to improve information quality and the efficiency of information collection by addressing issues such as the use of new or existing survey questions, question formatting, survey protocols, data collection software systems and other related processes.
Cognitive testing is a technique used to clarify the meaning of survey questions and/or the response options for questions. Cognitive testing contributes to the understanding of the validity and reliability of questions used for a variety of public health purposes. Cognitive testing is conducted early in the process of considering questions for use in a survey or other information collection activity. This type of testing is usually conducted in a controlled setting, such as an office setting. Respondents participate in a discussion or interview with a trained interviewer and may respond individually or as members of focus groups.
Questions may undergo cognitive testing because they have not been used in previous surveys; for example, questions related to the emergence of a new public health concern (such as e-cigarettes). In addition, testing may be conducted on previously used questions to assess their use in a different information collection mode; for example, testing might be conducted to convert questions developed for a paper survey to an interview format or an electronic survey format; or testing might be conducted to identify issues specific to a subpopulation or language translation. Respondents are asked to review questions and/or surveys to discuss their impressions of the items under consideration, the questions, the response set, individual words within the question, or the focus of the questionnaire itself. Incentives may be offered to respondents who participate in the in-person phase of cognitive testing since these activities involve additional burden and inconvenience.
Pilot testing is used to determine whether methods or modes of data collection (such as phone or mail surveys, in-person interviews or online data collection) are appropriate and efficient ways of collecting data. Pilot
The majority of participants in cognitive and pilot testing activities are expected to be adults ≥18 years of age. Information may be collected during the recruitment process to assist in the selection of respondents. Respondents may be recruited to take part in testing through online or newspaper advertisements. If the participants are not recruited to be present at a physical location, they may be called and recruited by telephone.
Cognitive and pilot testing are efficient means of identifying problems with questions and procedures prior to implementation of data collection. Thus, they are cost effective approaches to providing evidence on survey questionnaire performance. A consequence of cognitive and pilot testing is to maintain high levels of participation in the information collection process itself.
Initial response and burden estimates are based on anticipated information collection needs for the BRFSS, with an additional allocation for a variety of NCCDPHP programs and collaborators. Each information collection activity conducted through this generic will be submitted to OMB for approval in a project-specific information collection request that describes its purpose and methods.
Participation in cognitive and pilot testing is voluntary, but respondents will be encouraged to participate by explanations of the need for their input in the introduction of each survey. CDC requests approval for an 8,950 burden hours annually. There are no costs to respondents other than their time.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled Lyme and Other Tickborne Diseases Knowledge, Attitudes, and Practices Surveys to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on June 5, 2019 to obtain comments from the public and affected agencies. CDC received one comment related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) 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;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) 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) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Lyme and other Tickborne Diseases Knowledge, Attitudes, and Practices Surveys—Extension—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
The Centers for Disease Control and Prevention (CDC) Division of Vector-Borne Diseases (DVBD) and other programs working on tickborne diseases (TBDs) are requesting a three year extension without change for a generic clearance to conduct TBD prevention studies to include knowledge, attitudes, and practices (KAP) surveys regarding ticks and tickborne diseases (TBDs) among residents and businesses offering pest control services in Lyme disease endemic areas of the United States. The
The primary target population for these data collections are individuals and their household members who are at risk for TBDs associated with I. scapularis ticks and who may be exposed to these ticks residentially, recreationally, and/or occupationally. The secondary target population includes owners and employees of businesses offering pest control services to residents in areas where I. scapularis ticks transmit diseases to humans. Specifically, these target populations include those residing or working in the 15 highest incidence states for Lyme disease (CT, DE, ME, MD, MA, MN, NH, NJ, NY, PA, RI, VT, VA, WI and WV). We anticipate conducting one to two surveys per year, for a maximum of six surveys conducted over a three year period. Depending on the survey, we aim to enroll 500-10,000 participants per study. It is expected that we will need to target recruitment to about twice as many people as we intend to enroll. Surveys may be conducted daily, weekly, monthly, or bi-monthly per participant for a defined period of time (whether by phone or web survey), depending on the survey or study. The surveys will range in duration from approximately 5-30 minutes. Each participant may be surveyed 1-64 times in one year; this variance is due to differences in the type of information collected for a given survey. Specific burden estimates for each study and each information collection instrument will be provided with each individual project submission for OMB review. The maximum estimated, annualized burden hours are 9,583 hours.
Insights gained from KAP surveys will aid in prioritizing which prevention methods should be evaluated in future randomized, controlled trials and ultimately help target promotion of proven prevention methods that could yield substantial reductions in TBD incidence. There is no cost to respondents other than their time.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS)
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled Performance Measurement for STD Prevention. This information collection is for the 59 state, local, and territorial health departments that are recipients of CDC's cooperative agreement PS19-1901 STD PCHD. The information collection covers key performance measures that will be used to assess recipients' individual and collective progress towards the larger aims of the cooperative agreement, direct technical assistance to recipients, and obtain information needed to help assess the cooperative agreement's public health impact.
CDC must receive written comments on or before October 15, 2019.
You may submit comments, identified by Docket No. CDC-2019-0067 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
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,
5. Assess information collection costs.
Performance Measurement for STD Prevention and Control Program—New—National Center for HIV, Hepatitis, STD, and TB Prevention (NCHHSTP), Centers for Disease Control and Prevention (CDC).
Health departments play a critical role in addressing STD prevention and control and are well-positioned to monitor and understand local trends in STDs through case-based surveillance, and to respond to emerging threats and outbreaks. Health department STD programs also have the authority and skills to conduct disease investigation activities including partner services, an effective intervention to prevent STD transmission in some populations. Given that most STDs are diagnosed outside of public STD clinics, health departments must also work with primary care and other health care providers and organizations to promote the delivery of recommended, evidence-based STD screening, timely treatment, and other prevention services.
Federal support for state, local, and territorial health departments to carry out these functions has been in place for decades and remains a critical source of funding to monitor and fight increasing STDs across the US. CDC's cooperative agreement PS19-1901 STD PCHD is the latest iteration of this support, covering the five-year period 2019-2024. The cooperative agreement represents a focused scope of work that reflects the core public health functions of assessment, assurance, and policy, and aligns with today's STD epidemiology and best practices. In 2019, approximately $92.5 million dollars were awarded by CDC to 59 state, local, and territorial health departments to carry out these functions.
The goal of this data collection is to guide performance measurement efforts among the 59 health departments that receive funding from CDC to conduct STD surveillance, prevention and control through cooperative agreement PS19-1901. The purpose is to assess recipients' individual and collective progress towards the larger aims of the cooperative agreement, direct technical assistance to recipients, and obtain information needed to help assess the cooperative agreement's public health impact. The resulting data will be used to identify areas for improvement both within individual sites and as it pertains to the funded community as a whole, and to document outcomes associated with STD surveillance, prevention, and control efforts.
Data will be collected in aggregate using a Microsoft Excel-based data collection tool. All health department recipients will be required to submit the data tool annually. The population from which data will be collected is the 59 state, local, and territorial health departments that are funded through the cooperative agreement PS19-1901 STD PCHD. The total annual burden hours are 1,475. There are no other costs to respondents other than their time.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled Million Hearts Hypertension Control Challenge to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on December 12, 2018 to obtain comments from the public and affected agencies. CDC received two comments. We thank the respondents for these comments. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) 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;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) 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) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
Million Hearts Hypertension Control Challenge (OMB Control Number 0920-0976, Expiration 12/31/2019)—Revision—National Center for Chronic Disease Prevention and Health Promotion (NCCDPHP), Centers for Disease Control and Prevention (CDC).
Cardiovascular disease is a leading cause of death for men and women in the United States, among the most costly health problems facing our nation today, and among the most preventable. Heart disease and stroke also contribute significantly to disability. High blood pressure, also known as hypertension, is one of the leading causes of heart disease and stroke. Currently, about 78 million American adults have high blood pressure but only about half (48%) have adequately controlled blood pressure. The costs of hypertension are estimated at $48.9 billion annually in direct medical costs.
In September 2011, CDC launched the Million Hearts initiative to prevent one million heart attacks and strokes by 2017. In January 2018, CDC launched Million Hearts 2022 to continue to prevent one million heart attacks, strokes, and related health conditions. In order to achieve this goal, at least 10 million more Americans must have their blood pressure under control. Million Hearts is working to reach this goal through the promotion of clinical practices that are effective in increasing blood pressure control among patient populations. There is scientific evidence that provides general guidance on the types of system-based changes to clinical practice that can improve patient blood pressure control, but additional information is needed to fully understand implementation practices so that they can be shared and promoted.
In 2013, CDC launched the Million Hearts Hypertension Control Challenge, authorized by Public Law 111-358, the America Creating Opportunities to Meaningfully Promote Excellence in Technology, Education and Science Reauthorization Act of 2010 (COMPETES Act). The Challenge is designed to help CDC (1) identify clinical practices and health systems that have been successful in achieving high rates of hypertension control, and (2) develop models for dissemination. The Challenge is open to single practice providers, group practice providers, and healthcare systems. Providers whose hypertensive population achieves exemplary levels of hypertension control are recognized as Million Hearts Hypertension Control Champions.
Interested clinicians or practices complete a web-based application form which collects the minimum amount of data needed to demonstrate hypertension control among their adult patients, including: (a) Two point-in-time measures of the clinical hypertension control rate for the patient population, (b) the size of the clinic population served, (c) a brief description of the characteristics of the patient population served and geographic location, and (d) a description of the sustainable systems and strategies adopted to achieve and maintain hypertension control rates. The estimated burden for completing the application form is 30 minutes. CDC scientists or contractors review each application form and rank applications by reported hypertension control rate.
In the second phase of assessment, applicants with the highest preliminary scores are asked to participate in a two-hour data verification and validation process. The applicant reviews the application form with a reviewer, describes how information was obtained from the providers' (or practices') electronic records, chart reviews, or other sources, and reviews the methodology used to calculate the reported hypertension control rate. Data verification and validation is conducted to ensure that all applicants meet eligibility criteria and assure accuracy of their reported hypertension control rate according to a standardized method. Applicants must have achieved a hypertension control rate of at least 80% among their adult patients aged 18-85 years with hypertension.
Up to 35 finalists who pass the data verification and background check are selected as Champions. Several Champions participate in a one-hour, semi-structured interview and provide detailed information about the patient population served, the geographic region served, and the strategies employed by the practice or health system to achieve exemplary rates of hypertension control, including barriers and facilitators for those strategies. Based on the information collected for Challenges in 2013 through 2018, CDC recognized a total of 101 public and private health care practices and systems as Million Hearts® Hypertension Control Champions. The Champions are announced roughly annually, approximately six months after the Challenge application period ends. The current OMB approval for information collection expires December 31, 2019.
CDC plans to conduct the Million Hearts Hypertension Control Challenge annually through 2022. The 2020 Challenge is planned to launch in February 2020, coinciding with American Heart Month. The application period will be open for approximately 45-60 days, with recognition of the 2020 Champions in the fall of 2020. A similar calendar year schedule is planned for 2021 and 2022. Revision for 2020, 2021, and 2022 includes a reduction in the estimated number of respondents. During the period of this revision request, on an annual basis, CDC estimates that information will be collected from up to 200 applicants using the application form, at most 40 data verifications, and at most 35 semi-structured interviews. There is an overall reduction in estimated annualized burden hours.
The overall goal of the Million Hearts initiative is to prevent one million heart attacks and strokes, and controlling hypertension is one focus of the initiative. CDC will use the information collected through the Million Hearts Hypertension Control Challenge to increase widespread attention to hypertension at the clinical practice level, improve understanding of successful and sustainable implementation strategies at the practice or health system level, bring visibility to organizations that invest in hypertension control, and motivate individual practices to strengthen their hypertension control efforts. Information collected through the Million Hearts Hypertension Control Challenge will link success in clinical outcomes of hypertension control with information about strategies that can be used to achieve similar favorable outcomes so that the strategies can be replicated by other providers and health care systems.
OMB approval is requested for three years. Participation is voluntary. The total estimated annualized burden hours are 215. There are no costs to the respondents other than their time.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled “The Performance Measures Project: Improving Performance Measurement and Monitoring by CDC Programs” to the Office of Management and Budget (OMB) for review and approval. CDC previously published a “Proposed Data Collection Submitted for Public Comment and Recommendations” notice on February 7, 2019 to obtain comments from the public and affected agencies. CDC received one non-substantive comment related to the previous notice. This notice serves to allow an additional 30 days for public and affected agency comments.
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) 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;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) 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) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
The Performance Measures Project: Improving Performance Measurement and Monitoring by CDC Programs—New—Program Performance and Evaluation Office (PPEO), Centers for Disease Control and Prevention (CDC).
Each year, approximately 75% of the CDC's congressionally appropriated funding goes to extramural organizations, including state and local partners, via contracts, grants, and, most commonly, cooperative agreements. A cooperative agreement is an award mechanism used when there will be substantial Federal programmatic involvement, meaning that the CDC program staff will collaborate or participate in project or program activities. These funds are distributed from the Office of Grant Services to partners throughout the world to promote health, prevent disease, injury and disability and prepare for new health threats. The availability of funding for cooperative agreements is announced through a Notice of Funding Opportunity (NOFO). CDC awards approximately 65 new domestic, non-research NOFOs each year (each funded
To monitor the performance of recipients and CDC programs toward achieving outcomes specified by cooperative agreements, CDC currently uses the PPMR (OMB Control Number- 0920-1132, Expiration Date: 08/31/2019), a progress report form adapted from an information collection owned by the Administration for Children and Families (ACF). This tool may be used to collect information periodically from recipients of CDC funds regarding the progress made on CDC funded projects.
The Performance Measures Project will work with up to 25 CDC programs developing cooperative agreements to address the challenges they face with performance planning, measurement and monitoring. Each cooperative agreement will provide funding to an average of 35 local entities, for a total of up to 875 locally funded entities.
Through participation in this Project, CDC programs and recipients of cooperative agreement funds will: (1) Develop strong performance measurement systems and practices; (2) define and operationalize priority performance measures tailored to a specific cooperative agreement; and (3) establish common data collection and reporting expectations across all recipients for a specific cooperative agreement. The Project focuses on addressing these issues during the early stages of cooperative agreement development and implementation.
The Project proposes a generic clearance adapted from a previously approved generic clearance (OMB Control Number: 0970-0490, Expiration Date 1/31/2020) owned by ACF. This ACF generic clearance replaces the information collection that is the basis of CDC's current PPMR. Project participants will customize sample information collections to meet program-specific needs. The information collected will enable the accurate, reliable, uniform and timely submission to CDC of each recipient's progress and performance measures.
The information collected by the generic information collection is designed to align with, and support the goals outlined for each of the CDC recipients. Collection and reporting of the information will occur in an efficient, standardized, and user-friendly manner that will generate a variety of routine and customizable reports. The generic information collection will allow each recipient to summarize activities and progress towards meeting performance measures and goals over a specified time period specific to each award. CDC will also have the capacity to generate reports that describe activities across multiple recipients. In addition, CDC will use the information collected to respond to inquiries from HHS, Congress and other stakeholder inquiries about program activities and their impact. CDC requests OMB approval for three years. The total estimated burden is 35,000 hours. There is no cost to respondents other than their time.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by September 12, 2019.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, Fax: 202-395-7285, or emailed to
Amber Sanford, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-8867,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
FDA's guidance document “Medical Device Accessories—Describing Accessories and Classification Pathways” (the Accessories guidance)
We are requesting OMB approval to revise this information collection request (ICR) by adding burden estimates for two new accessory classification pathways created by the FDA Reauthorization Act of 2017 (FDARA) (Pub. L. 115-52).
FDARA changed how FDA regulates medical device accessories. Specifically, section 707 of FDARA added section 513(f)(6) to the statute and requires that FDA, upon request, classify existing and new accessories notwithstanding the classification of any other device with which such accessory is intended to be used. This means that the classification of an accessory may not be the same as its parent device, depending on the risks of the accessory when used as intended and the level of regulatory controls necessary for reasonable assurance of safety and effectiveness of the accessory. Until an accessory is distinctly classified, its existing classification will continue to apply. This provision does not preclude a manufacturer from submitting a De Novo request for an accessory.
When the Accessories guidance originally issued, FDA encouraged the use of the De Novo classification process to allow manufacturers to request risk- and regulatory control-based classification of accessories of a new type. FDA's recommendations in the guidance represented a new information collection as an accessory classification De Novo request. The information collected for an accessory classification De Novo request is substantially the same as a De Novo request (since approved under OMB control number 0910-0844), is submitted in the same manner, and has the same estimated information collection burden. The burden estimate associated with “De Novo request under 21 U.S.C. 513(f)(2)(i)” and “De Novo request under 21 U.S.C. 513(f)(2)(ii),” in OMB control number 0910-0844, includes De Novo requests for accessories. We have determined that the burden estimate for “Accessory Classification De Novo Requests” in this ICR (Accessory Classification Requests; OMB control number 0910-0823) is redundant and have, therefore, removed it.
Depending on an accessory's regulatory history, there are different submission types, tracking mechanisms, and deadlines:
(1) Existing accessory types are those that have been identified in a classification regulation or granted marketing authorization as part of a 510(k), pre-market application (PMA), or De Novo request (approved under OMB control numbers 0910-0120, 0910-0231, and 0910-0844, respectively). Manufacturers with marketing authorization for an existing accessory may request appropriate classification through a new stand-alone premarket submission (Existing Accessory Request). Upon request, FDA is required to meet with a manufacturer or importer to discuss the appropriate classification of an existing accessory prior to submitting a written request. Existing Accessory Requests will be initially tracked as “Q-submissions” (approved under OMB control number 0910-0756). FDA has a statutory deadline of 85 calendar days to respond to an Existing Accessory Request.
(2) New accessory types are those that have not been granted marketing authorization as part of a 510(k), PMA, or De Novo request. Manufacturers may include new accessories into a 510(k) or PMA with the parent device (New Accessory Request). New Accessory Requests will have the same deadline as the 510(k) or PMA. Therefore, new accessory types should follow the applicable Medical Device User Fee Amendments of 2017 deadline for the parent submission. The decision for New Accessory Requests will be separate from the decision for the marketing application.
For both Existing and New Accessory Requests, manufacturers must request proper classification of their accessory in the submission and include draft special controls, if requesting classification into class II. The processes that we use to classify an accessory will be like those used for De Novo requests. If FDA grants the Accessory Request, FDA must issue an order establishing a new classification regulation for the accessory type. If FDA denies the Accessory Request, FDA must issue a letter with a detailed description and justification for our determination.
In the
FDA estimates the burden of this collection of information as follows:
We expect to receive approximately 15 Existing Accessory Requests and 10 New Accessory Requests per year. Based on estimates by FDA administrative and technical staff who are familiar with the submission process for accessory classification requests, we estimate that the “Average Burden per Response” for both Existing and New Accessory Requests will be approximately 40 hours per submission.
Our estimated burden for the information collection reflects an overall decrease of 440 hours and an increase of 17 responses. Factors contributing to the revision of the burden estimate include the addition of the two new accessory classification pathways created by FDARA and the removal of redundant burden described earlier in this document.
Food and Drug Administration, HHS.
Notice; renewal of advisory committee.
The Food and Drug Administration (FDA) is announcing the renewal of the National Mammography Quality Assurance Advisory Committee by the Commissioner of Food and Drugs (the Commissioner). The Commissioner has determined that it is in the public interest to renew the National Mammography Quality Assurance Advisory Committee for an additional 2 years beyond the charter expiration date. The new charter will be in effect until July 7, 2021.
Authority for the National Mammography Quality Assurance Advisory Committee would have expired on July 7, 2019; however, the Commissioner formally determined that renewal is in the public interest.
Sara Anderson, Office of Management, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. G616, Silver Spring, MD 20993-0002, 301-796-7047,
Under 41 CFR 102-3.65 and approval by the Department of Health and Human Services under 45 CFR part 11 and by the General Services Administration, FDA is announcing the renewal of the National Mammography Quality Assurance Advisory Committee. The committee is a non-discretionary Federal advisory committee established to provide advice to the Commissioner. The Secretary and, by delegation, the Assistant Secretary for the Office of Public Health and Science, and the Commissioner of Food and Drugs are charged with the administration of the Federal Food, Drug and Cosmetic Act and various provisions of the Public Health Service Act. The Mammography Quality Standards Act of 1992 amends the Public Health Service Act to establish national uniform quality and safety standards for mammography facilities. The National Mammography Quality Assurance Advisory Committee advises the Secretary and, by delegation, the Commissioner of Food and Drugs in discharging their responsibilities with respect to establishing a mammography facilities certification program. The Committee shall advise the Food and Drug Administration on:
(1) Developing appropriate quality standards and regulations for mammography facilities;
(2) developing appropriate standards and regulations for bodies accrediting mammography facilities under this program;
(3) developing regulations with respect to sanctions;
(4) developing procedures for monitoring compliance with standards;
(5) establishing a mechanism to investigate consumer complaints;
(6) reporting new developments concerning breast imaging that should be considered in the oversight of mammography facilities;
(7) determining whether there exists a shortage of mammography facilities in rural and health professional shortage areas and determining the effects of personnel on access to the services of such facilities in such areas;
(8) determining whether there will exist a sufficient number of medical physicists after October 1, 1999; and
(9) determining the costs and benefits of compliance with these requirements.
The Committee shall consist of a core of 15 members, including the Chair. Members and the Chair are selected by the Commissioner or designee from among physicians, practitioners, and other health professionals, whose clinical practice, research specialization, or professional expertise includes a significant focus on mammography. Members will be invited to serve for overlapping terms of up to 4 years. Almost all non-Federal members of this committee serve as Special Government Employees. The core of voting members shall include at least four individuals from among national breast cancer or consumer health organizations with expertise in mammography, and at least two practicing physicians who provide mammography services. In addition to the voting members, the Committee shall include two nonvoting industry representatives who have expertise in mammography equipment. The Committee may include one technically qualified member, selected by the Commissioner or designee, who is identified with consumer interests.
Further information regarding the most recent charter and other information can be found at
This document is issued under the Federal Advisory Committee Act (5 U.S.C. app.). For general information related to FDA advisory committees, please visit us at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal Agencies are required to publish notice in the
Submit either electronic or written comments on the collection of information by October 11, 2019.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before October 11, 2019. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Amber Sanford, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-8867,
Under the PRA (44 U.S.C. 3501-3520), Federal Agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes Agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal Agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
The guidance entitled “Requests for Feedback and Meetings for Medical Device Submissions: The Q-Submission Program” (
For clarity and consistency with the guidance that describes the program, we are requesting that the title of the information collection request, OMB control number 0910-0756, be changed to “Q-Submission Program for Medical Devices.”
FDA estimates the burden of this collection of information as follows:
Respondents are medical device manufacturers subject to FDA's laws and regulations. FDA's annual estimate of 3,593 submissions is based on experienced recent trends. FDA's administrative and technical staffs, who are familiar with Q-Submissions, estimate that an average of 137 hours is required to prepare a Q-Submission.
Our estimated burden for the information collection reflects an overall increase of 143,713 hours. We attribute this adjustment to an increase in the number of submissions we received based on FY18 data.
Food and Drug Administration, HHS.
Notice of public meeting; extension of comment period.
The Food and Drug Administration (FDA, the Agency, or we) is extending the comment period for the notice of public meeting entitled “Incorporating Alternative Approaches in Clinical Investigations for New Animal Drugs; Public Meeting; Request for Comments” that appeared in the
FDA is extending the comment period on the notice of public meeting published July 9, 2019 (84 FR 32749). Submit either electronic or written comments by September 16, 2019.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before September 16, 2019. The
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Susan Storey, Center for Veterinary Medicine, Food and Drug Administration, 7500 Standish Pl. (HFV-131), Rockville, MD, 20855, 240-402-0578,
In the
The Agency has received a request for a 30-day extension of the comment period for the notice of meeting. The request conveyed concern that the current 30-day comment period does not allow sufficient time to develop a meaningful or thoughtful response to alternative approaches in clinical investigations for new animal drugs.
FDA has considered the request and is extending the comment period for the notice of public meeting for 30 days, until September 16, 2019. The Agency believes that a 30-day extension allows adequate time for interested persons to submit comments without significantly delaying the development of guidance on these important issues.
In accordance with Title 41 of the U.S. Code of Federal Regulations, Section 102-3.65(a), notice is hereby given that the Charter for the Novel and Exceptional Technology and Research Advisory Committee was renewed for an additional two-year period on June 30, 2019. Prior to this renewal, the Charter was amended to reflect the Committee's name change from the Recombinant DNA Advisory Committee to the Novel and Exceptional Technology and Research Advisory Committee.
It is determined that the Novel and Exceptional Technology and Research Advisory Committee is in the public interest in connection with the performance of duties imposed on the National Institutes of Health by law, and that these duties can best be performed through the advice and counsel of this group.
Inquiries may be directed to Claire Harris, Director, Office of Federal Advisory Committee Policy, Office of the Director, National Institutes of Health, 6701 Democracy Boulevard, Suite 1000, Bethesda, Maryland 20892 (Mail code 4875), Telephone (301) 496-2123, or
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
This notice announces the next meeting of the Scientific Advisory Committee on Alternative Toxicological Methods (SACATM). SACATM, a federally chartered external advisory group of scientists from the public and private sectors, including representatives of regulated industry and national animal protection organizations, advises the Interagency Coordinating Committee on the Validation of Alternative Methods (ICCVAM), the National Toxicology Program (NTP) Interagency Center for the Evaluation of Alternative Toxicological Methods (NICEATM), and the Director of the National Institute of
Registration to view the meeting via the webcast is required.
Dr. Elizabeth Maull, Designated Federal Official for SACATM, Office of Liaison, Policy and Review, Division of NTP, NIEHS, P.O. Box 12233, K2-17, Research Triangle Park, NC 27709. Phone: 984-287-3157, Fax: 301-480-3008, Email:
SACATM will provide input to ICCVAM, NICEATM, and NIEHS on programmatic activities and issues. Preliminary agenda items for the upcoming meeting include: (1) New approaches to the principles and practice of validation, (2) developing a next generation data infrastructure to support the development and implementation of new approach methodologies (NAMs) for complex endpoints, and (3) translational impact and human relevance of NAMs. Please see the preliminary agenda for information about the specific presentations.
The preliminary agenda, roster of SACATM members, background materials, public comments, and any additional information will be posted when available on the SACATM meeting website (
Interested persons may attend the meeting in person or view the webcast. Registration is required to view the webcast; the URL for the webcast will be provided in the email confirming registration. Individuals who plan to provide oral comments (see below) are encouraged to register online at the SACATM meeting website (
The ICCVAM Authorization Act of 2000 (42 U.S.C. 285
NICEATM administers ICCVAM, provides scientific and operational support for ICCVAM-related activities, and conducts and publishes analyses and evaluations of data from new, revised, and alternative testing approaches. NICEATM and ICCVAM work collaboratively to evaluate new
SACATM, established by the ICCVAM Authorization Act [Section 285l-3(d)], provides advice on priorities and activities related to the development, validation, scientific review, regulatory acceptance, implementation, and national and international harmonization of new, revised, and alternative toxicological test methods to ICCVAM, NICEATM, and Director of NIEHS and NTP. Additional information about SACATM, including the charter, roster, and records of past meetings, can be found at
Notice is hereby given of a change in the meeting of the National Center for Advancing Translational Sciences Advisory Council, which was published in the
Amendment to change start time of the closed session from 9 a.m. to 8:30 a.m. and to change the start time of the open session from 11 a.m. to 10 a.m. The meeting is partially Closed to the public.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
These regulations meet the directive under 42 U.S.C. 10826(b) requiring the Secretary to promulgate final regulations to carry out the PAIMI Act (42 U.S.C. 10801
On January 1, each eligible state protection and advocacy (P&A) system is required to prepare an annual PAIMI Program Performance Report (PPR). Each annual PPR describes a P&A system's activities, accomplishments and expenditures to protect the rights of individuals with mental illness supported with payments from PAIMI program allotments during the most recently completed fiscal year. Each P&A system transmit a copy of its annual report to the Secretary (via SAMHSA) and to the State Mental Health Agency where the system is located per the PAIMI Act at 42 U.S.C. 10824(a). Each annual PPR must provide the Secretary with the following information:
• The number of (PAIMI-eligible) individuals with mental illness served;
• A description of the types of activities undertaken;
• A description of the types of facilities providing care or treatment to which such activities are undertaken;
• A description of the manner in which the activities are initiated;
• A description of the accomplishments resulting from such activities;
• A description of systems to protect and advocate the rights of individuals with mental illness supported with payments from PAIMI Program allotments;
• A description of activities conducted by States to protect and advocate such rights;
• A description of mechanisms established by residential facilities for individuals with mental illness to protect such rights;
• A description of the coordination among such systems, activities and mechanisms;
• Specification of the number of public and nonprofit P&A systems established with PAIMI Program allotments; and
• Recommendations for activities and services to improve the protection and advocacy of the rights of individuals with mental illness and a description of the need for such activities and services that were not met by the state P&A systems established under the PAIMI Act due to resource or annual program priority limitations.
Each PAIMI grantee's annual PPR must include a separate section, prepared by its PAIMI Advisory Council (PAC), that describes the council's activities and its assessment of the state P&A system's operations per the PAIMI Act at 42 U.S.C. 10805(7).
In 2017, SAMHSA included the annual PAIMI PPR in the Web-based Block Grant Application System (WebBGAS). WebBGAS, SAMHSAs electronic data system, is used to collect grantee information for the following reasons:
(1) To meet the OMB requirements for data collection for mandatory (formula) grant programs;
(2) To comply with the annual program reporting requirements of the PAIMI Act 42 U.S.C. 10801
(3) To simplify the submission of PAIMI program data by the state P&A systems;
(4) To meet the Government Performance Results Act (GPRA) requirements;
(5) To comply with the Government Accountability Office (GAO) evaluation recommendations that SAMHSA obtain information that closely measures the actual outcomes of the programs it funds;
(6) To reduce the grantee data collection burden by removing information that did not facilitate evaluation of a PAIMI grantee's programmatic and financial management systems;
(7) To provide immediate access to the PAIMI program data used to prepare a section of the Secretary's biennial report to the President, Congress, and National Council on Disability in accordance with the
(8) To improve SAMHSA's ability to create reports, analyze trends and provide timely feedback to the P&A grantees when PPR revisions are needed.
On July 17, 2017, OMB approved SAMHSA's PPR and Advisory Council Report (Control No. 0930-0169, Expiration Date July 31, 2020). The burden estimate for the annual State P&A system reporting requirements for these regulations is as follows:
Written comments and recommendations concerning the proposed information collection should be sent by September 12, 2019 to the SAMHSA Desk Officer at the Office of Information and Regulatory Affairs, OMB. To ensure timely receipt of comments, and to avoid potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, commenters are encouraged to submit their comments to OMB via email to:
Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. chapter 35). To request a copy of these
42 CFR part 8 establishes a certification program managed by SAMHSA's Center for Substance Abuse Treatment (CSAT). The regulation requires that Opioid Treatment Programs (OTPs) be certified. “Certification” is the process by which SAMHSA determines that an OTP is qualified to provide opioid treatment under the Federal opioid treatment standards established by the Secretary of Health and Human Services. To become certified, an OTP must be accredited by a SAMHSA-approved accreditation body. The regulation also provides standards for such services as individualized treatment planning, increased medical supervision, and assessment of patient outcomes. This submission seeks continued approval of the information collection requirements in the regulation and of the forms used in implementing the regulation.
SAMHSA currently has approval for the Application for Certification to Use Opioid Drugs in a Treatment Program Under 42 CFR 8.11 (Form SMA-162); the Application for Approval as Accreditation Body Under 42 CFR 8.3(b) (Form SMA-163); and the Exception Request and Record of Justification Under 42 CFR 8.12 (Form SMA-168), which may be used on a voluntary basis by physicians when there is a patient care situation in which the physician must make a treatment decision that differs from the treatment regimen required by the regulation. Form SMA-168 is a simplified, standardized form to facilitate the documentation, request, and approval process for exceptions.
SAMHSA believes that the recordkeeping requirements in the regulation are customary and usual practices within the medical and rehabilitative communities and has not calculated a response burden for them. The recordkeeping requirements set forth in 42 CFR 8.4, 8.11 and 8.12 include maintenance of the following: 5-year retention by accreditation bodies of certain records pertaining to accreditation; documentation by an OTP of the following: A patient's medical examination when admitted to treatment, A patient's history, a treatment plan, any prenatal support provided the patient, justification of unusually large initial doses, changes in a patient's dosage schedule, justification of unusually large daily doses, the rationale for decreasing a patient's clinic attendance, and documentation of physiologic dependence.
The rule also includes requirements that OTPs and accreditation organizations disclose information. For example, 42 CFR 8.12(e)(1) requires that a physician explain the facts concerning the use of opioid drug treatment to each patient. This type of disclosure is considered to be consistent with the common medical practice and is not considered an additional burden. Further, the rule requires, under Sec. 8.4(i)(1) that accreditation organizations shall make public their fee structure; this type of disclosure is standard business practice and is not considered a burden.
The tables that follow summarize the annual reporting burden associated with the regulation, including burden associated with the forms. There are no changes being made to the forms.
Written comments and recommendations concerning the proposed information collection should be sent by September 12, 2019 to the SAMHSA Desk Officer at the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). To ensure timely receipt of comments, and to avoid potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, commenters are encouraged to submit their comments to OMB via email to:
Periodically, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish a summary of information collection requests under OMB review, in compliance with the Paperwork Reduction Act (44 U.S.C. Chapter 35). To request a copy of these documents, call the SAMHSA Reports Clearance Officer on (240) 276-1112.
The National Survey on Drug Use and Health (NSDUH) is a survey of the U.S. civilian, non-institutionalized population aged 12 years old or older. The data are used to determine the prevalence of use of tobacco products, alcohol, illicit substances, and illicit use of prescription drugs. The results are used by SAMHSA, the Office of National Drug Control Policy (ONDCP), federal government agencies, and other organizations and researchers to establish policy, direct program activities, and better allocate resources.
NSDUH must be updated periodically to reflect changing substance use and mental health issues and to continue producing current data. For the 2020 NSDUH main study the following changes from 2019 are planned: (1) The addition of lifetime and recency questions about vaping anything and vaping nicotine or tobacco; the addition of lifetime and recency questions on synthetic marijuana and synthetic stimulants; (2) the addition of questions in concordance with the Diagnostic and Statistical Manual of Mental Disorders (DSM), fifth edition criteria (
By including these new questions in NSDUH, estimates may be generated on the use of these substances among the general population and allow SAMHSA to provide national-level estimates among adults and adolescents on the
The new questions on craving for all substances and withdrawal for marijuana/cannabis were added to the 2020 NSDUH main study to reflect the updated
The marijuana marketplace module (originally dropped in the 2015 redesign questionnaire) was reinserted in the NSDUH main study questionnaire starting in 2018 at the request of ONDCP but was unchanged from the version previously used in the 2014 NSDUH. (This module was not part of the NSDUH questionnaire from 2015-2017.) This module consists of a series of questions that seek to gather data such as the location, quantity, cost and type of marijuana being purchased across the nation. Revisions have been made to this module for 2020 to reflect the availability that marijuana can now be purchased from a retail store or dispensary.
As with all NSDUH/NHSDA surveys conducted since 1999, the sample size of the NSDUH main study for 2020 will be sufficient to permit prevalence estimates for each of the fifty states and the District of Columbia. (Prior to 2002, the NSDUH was referred to as the National Household Survey on Drug Abuse (NHSDA). The total annual burden estimate for the NSDUH main study is shown below in Table 1.
In addition, a Clinical Validation Study (CVS) is planned to be embedded within the first six months of 2020 NSDUH main study data collection to assess revisions to the substance use disorders (SUD) module to be consistent with the
During CVS data collection from January through June 2020, approximately 1,500 NSDUH main study interview respondents will be selected for a follow-up clinical interview at the end of the main study interview in order to produce a final sample size of approximately 826 CVS respondents. These follow-up clinical interviews will be conducted via telephone using the SCID-5 within two to four weeks following the NSDUH main study interview.
Many of the procedures and protocols planned for inclusion in this CVS are based upon those previously employed as part of the 2018 National Mental Health Study (approved under OMB No. 0930-0380) and the 2008-2012 NSDUH Mental Health Surveillance Study (approved as an add-on to NSDUH under OMB No. 0930-0110).
Also, to complete training prior to CVS data collection, each clinical interviewer candidate hired must successfully administer the follow-up clinical interview with a volunteer respondent. These 70 certification interviews will be administered in the same manner as CVS follow-up clinical interviews.
The total annual burden estimate for the CVS is shown below in Table 2.
Also, as part of SAMHSA's ongoing effort to ensure NSDUH continues producing current and accurate data, a Redesign Field Test (FT) is planned from August through November 2020 to assess potential revisions to the NSDUH main study questionnaire. These revisions are designed to address changing policy and research data needs; in addition, modifications to associated survey materials and methods are designed to improve the quality of estimates and the efficiency of data collection. Planned FT modifications include changes to respondent incentives, respondent materials, the household screening questionnaire, the interview questionnaire, and other data collection methods.
The FT is essential for providing a thorough examination of these planned changes prior to their deployment on the NSDUH main study to determine potential impact across operational and
During FT data collection from August through November 2020, conducted separately from ongoing 2020 NSDUH main study data collection at that time, screenings will be completed with approximately 8,110 English-speaking respondents in the contiguous United States. (Alaska and Hawaii are excluded from the FT to control study costs.) From those screenings, approximately 4,000 respondents, as representatives of the civilian, noninstitutional population aged 12 years old or older, are expected to complete a FT interview using the revised questionnaire and materials.
For the NSDUH FT screening, revisions may include: (1) A revised roster structure; (2) various wording edits to improve respondent comprehension and flow; (3) the use of revised materials, such as the lead letter, study description and question & answer brochure; (4) a conditional test of a $5 screening incentive to assess impact on response rates; and (5) the inclusion of two outcome questions on past month alcohol and past month cigarette use at the end of the screening to assess nonresponse bias from the screening incentive.
For the NSDUH FT interview, revisions may include: (1) A conditional test of a $50 interview incentive to assess impact on response rates; (2) revisions to the
The total annual burden estimate for the FT is shown below in Table 3.
Written comments and recommendations concerning the proposed information collection should be sent by September 12, 2019 to the SAMHSA Desk Officer at the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB). To ensure timely receipt of comments, and to avoid potential delays in OMB's receipt and processing of mail sent through the U.S. Postal Service, commenters are encouraged to submit their comments to OMB via email to:
U.S. Customs and Border Protection, Department of Homeland Security.
General notice.
This document announces that U.S. Customs and Border Protection (CBP) is conducting a test of new functionalities related to the electronic entry filing for low-valued shipments through the Automated Commercial Environment (ACE). The Section 321
The test will commence no earlier than September 28, 2019 and will continue until concluded by an announcement published in the
Comments concerning this notice and any aspect of this test may be submitted at any time during the test via email to
Randy Mitchell, Director, Commercial Operations, Revenue and Entry Division, Office of Trade, U.S. Customs
This document announces that U.S. Customs and Border Protection (CBP) is conducting a test to allow Section 321 low-valued shipments, including those shipments subject to Partner Government Agency (PGA) data requirements, to be entered by filing a new type of informal entry electronically in the Automated Commercial Environment (ACE). This will allow CBP to address the growing volume of Section 321 low-valued shipments resulting from the global shift in trade to an e-commerce platform, test the new functionality in ACE, facilitate cross-border e-commerce, and allow Section 321 low-valued shipments subject to PGA data requirements to utilize a Section 321
Section 321(a)(2)(C) of the Tariff Act of 1930 (19 U.S.C. 1321(a)(2)(C)), as amended by the Trade Facilitation and Trade Enforcement Act of 2015 (TFTEA), Section 901, Public Law 114-125, 130 Stat. 122 (19 U.S.C. 4301 note), authorizes CBP to provide an administrative exemption to admit free from duty and tax, shipments of merchandise (other than bona-fide gifts and certain personal and household goods) imported by one person on one day having an aggregate fair retail value in the country of shipment of not more than $800. The regulations issued under the authority of section 321(a)(2)(C) are set forth in sections 10.151 and 10.153 of title 19 of the Code of Federal Regulations (19 CFR 10.151 and 10.153).
Section 10.151 of the regulations implements the administrative exemption provided for in 19 U.S.C. 1321. A shipment of merchandise valued at $800 or less, which qualifies for informal entry under 19 U.S.C. 1498 and meets the requirements in 19 U.S.C. 1321(a)(2), including 19 CFR 10.151, is referred to in this document as a “Section 321 low-valued shipment.” Unless a CBP official has reason to believe that a Section 321 low-valued shipment fails to comply with any pertinent law or regulation, section 10.153 sets forth the guidance to be applied by a CBP officer in determining whether an article or parcel shall be exempted from duty and tax under section 10.151 and qualify as a Section 321 low-valued shipment. Accordingly, consolidated shipments addressed to one consignee shall be treated as one importation; alcoholic beverages and cigars (including cheroots and cigarillos) and cigarettes containing tobacco, cigarette tubes, cigarette papers, smoking tobacco (including water pipe tobacco, pipe tobacco, and roll-your-own tobacco), snuff, or chewing tobacco are not exempt; any merchandise subject to antidumping and countervailing duties is not exempt; any merchandise of a class or kind provided for in any absolute or tariff-rate quota, whether the quota is open or closed, is not exempt; and, there is no exemption from any tax imposed under the Internal Revenue Code that is collected by other agencies on imported goods.
Pursuant to 19 CFR 10.151, merchandise subject to the Section 321 administrative exemption shall be entered under informal entry procedures unless formal entry is deemed necessary. The relevant informal entry procedures for Section 321 low-valued shipments are set forth in 19 CFR 128.24 and 19 CFR part 143, subpart C. A Section 321 low-valued shipment may be entered, using reasonable care, by the owner, purchaser, or consignee of the shipment, or, when appropriately designated by one of these persons, a customs broker licensed under 19 U.S.C. 1641.
Section 321 low-valued shipments may be entered by presenting the bill of lading or a manifest listing each bill of lading.
A Section 321 low-valued shipment is not exempt from PGA requirements. Many agencies do not have
This document announces CBP's plan to conduct a test to authorize a new Section 321
In developing the ACE Entry Type 86 Test, CBP has coordinated with the Commercial Customs Operations Advisory Committee (COAC), trade industry representatives, and PGAs, and has considered the public comments received from the “Administrative Exemption on Value Increased for Certain Articles” interim final rule (Administrative Exemption IFR). On August 26, 2016, CBP published the Administrative Exemption IFR in the
Five of the commenters encouraged CBP to automate Section 321 clearance using ACE. These commenters pointed out that automating Section 321 clearance through ACE will increase CBP's ability to provide risk-based targeting of inbound shipments, assure supply chain security, enforce trade laws, and protect intellectual property rights. Various ACE clearance processes were suggested by the commenters, including using the Automated Broker Interface (ABI) to allow the owner, purchaser, consignee, or designated customs broker to file the necessary information.
Most commenters also asserted that any ACE Section 321 clearance process should allow for the submission of PGA data. One commenter pointed out that unless Section 321 low-valued shipments subject to PGA requirements could be cleared under a Section 321
CBP believes that the development of the new entry type “86” effectively addresses the public comments; facilitates legitimate trade while also allowing CBP to enhance its targeting capabilities; ensures that PGAs can identify potential violative products for reporting or enforcement targeting purposes while allowing filers to utilize a less complex entry process; and decreases the challenges faced by CBP in targeting, locating and examining Section 321 low-valued shipments by collecting necessary data. Processing Section 321 low-valued shipments in ACE utilizes the “single window” system, thereby granting all government agencies involved with the importation of goods into the United States access to data concerning the shipments and gives the trade a single mechanism to enter data.
The test described in this notice is authorized pursuant to 19 CFR 101.9(a), which grants the Commissioner of CBP the authority to impose requirements different from those specified in the CBP regulations for purposes of conducting a test program or procedure designed to evaluate the effectiveness of new technology or operational procedures regarding the processing of passengers, vessels, or merchandise.
The ACE Entry Type 86 Test will allow CBP to test ACE functionality, and to test the new operational procedures involved with the new entry type, including any challenges that may result and any coordination that is necessary with PGAs. Additionally, the test will allow CBP to determine if entry type “86” effectively addresses the threats and complexities resulting from the global shift in trade to an e-commerce platform, the vast increase in Section 321 low-valued shipments, and facilitates cross-border e-commerce.
A Section 321 low-valued shipment may be entered by the owner, purchaser, or consignee of the shipment, or, when appropriately designated by one of these persons, a customs broker licensed under 19 U.S.C. 1641.
To participate in this test, an owner, purchaser, or customs broker appointed by an owner, purchaser, or consignee will file an informal entry type “86” in ACE through ABI. ABI allows participants to electronically file all required import data with CBP, and transfers that data into ACE. To participate in ABI, a filer must meet the requirements and procedures set forth in 19 CFR part 143, subpart A, and must meet the technical requirements set forth in the Customs and Trade Automated Interface Requirements (CATAIR).
The test is open to all owners, purchasers, consignees, and designated customs brokers of Section 321 low-valued shipments, including those subject to PGA requirements, imported by all modes of cargo transportation. CBP encourages all eligible parties to participate in this test to test the functionality of the new entry type. Importers of Section 321 low-valued shipments that do not contain any PGA data requirements may continue to utilize the “release from manifest” process or may utilize the ACE Entry Type 86 Test.
When filing an entry type “86,” a bond and entry summary documentation are not required. Under entry type “86,” the importing party is exempt from payment of the harbor maintenance tax and merchandise processing fee for merchandise released as a Section 321 low-valued shipment.
An entry type “86” requires the owner, purchaser, or customs broker
(1) The bill of lading or the air waybill number;
(2) Entry number;
(3) Planned port of entry;
(4) Shipper name, address, and country;
(5) Consignee name and address;
(6) Country of origin;
(7) Quantity;
(8) Fair retail value in the country of shipment;
(9) 10-digit HTSUS number;
(10) IOR number of the owner, purchaser, or broker when designated by a consignee (conditional).
The IOR number is a conditional ACE Entry Type 86 Test data element and is required when the shipment is subject to PGA data reporting requirements. The IOR number provided must be that of the shipment's owner, purchaser, or broker when designated by a consignee.
Upon receipt of the data in an entry type “86” filing, CBP will determine whether the shipment is subject to PGA data reporting requirements. Any PGA data reporting requirements would be satisfied by the PGA Message Set and the filing of any supporting documentation via the Document Image System (DIS). The PGA Message Set enables the trade community to electronically submit all data required by the PGAs only once to CBP, eliminating the necessity for the submission and subsequent manual processing of paper documents, and makes the required data available to the relevant PGAs for import and transportation-related decision making.
A “CBP release” message indicates that CBP has determined that the Section 321 low-valued goods may be released from CBP custody. All merchandise released by CBP is released conditionally and remains subject to recall through the issuance of a Notice of Redelivery. Merchandise that is regulated by one or more PGAs may not proceed into commerce until CBP releases the merchandise and all PGAs that regulate the merchandise have issued a “may proceed” message.
The definitions of the ACE data elements, the technical requirements for submission, and information describing how filers receive transmissions are set forth in the CATAIR guidelines for ACE, which may be found at
For purposes of this test, 19 CFR 10.151 will be waived for test participants only insofar as the informal entry procedures for “release from manifest” are inconsistent with the requirements in this notice. Additionally, 19 CFR 128.21(a), 128.24(e), 143.23(j) and (k), and 143.26(b) will be waived for test participants to the extent such procedures are inconsistent with the requirements of this notice.
All interested parties are invited to comment on any aspect of this test at any time. CBP requests comments and feedback on all aspects of this test, including the design, conduct and implementation of the test, in order to determine whether to modify, alter, expand, limit, continue, end, or fully implement this new entry process.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), an agency may not conduct, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number assigned by OMB. The collections of information for the ACE Entry Type 86 Test are included in an existing collection for CBP Form 3461 (OMB control number 1651-0024).
A test participant may be subject to civil and criminal penalties, administrative sanctions, or liquidated damages for any of the following:
(1) Failure to follow the rules, requirements, terms, and conditions of this test;
(2) Failure to exercise reasonable care in the execution of participant obligations; or
(3) Failure to abide by applicable laws and regulations that have not been waived.
Office of the Chief Information Officer, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806, Email:
Anna P. Guido, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Anna P. Guido at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
This proposed collection, titled Standards for Success, has three key tenets which vastly improve data collection and reporting for participating programs. First is the standardization of data collection and reporting requirements across programs which increases data comparability and utilization. Second is the ability to report on measurable outcomes and aligning them with higher-level agency objectives. And third is the collection of record-level data, instead of aggregate data. Collecting de-identified data at the level of the service recipient allows for more meaningful analysis, improved management, and the ability to demonstrate the progress and achievements of the funding recipients and the programs. Standards for Success accepts data submission by direct data input through the HUD-funded GrantSolutions online data collection and reporting tool (OLDC) and by data file upload, accommodating file formats in Microsoft Excel or Extensible Markup Language (XML).
Currently across HUD, there are several reporting models in place for its discretionary programs. The reporting models provide information on a wide variety of outputs and outcomes and are based on unique data definitions and outcome measures in program-specific performance and progress reports. In Federal Fiscal Year 2013, nine program offices at HUD used six systems and 15 reporting tools to collect over 700 data elements in support of varied metrics to assess the performance of their funding recipients. The proposed data collection and reporting requirements described in this notice are designed to provide HUD programs a tested alternative to their existing disparate reporting methodologies, forms, systems, and requirements.
The lack of standardized data collection and reporting requirements imposes an increased burden on funding recipients with multiple HUD funding streams. The need for a comprehensive standardized reporting approach is underscored by reviews conducted by external oversight agencies, including the HUD Office of Inspector General (OIG) and the Government Accountability Office (GAO). In response, HUD is using its statutory and regulatory authority to improve and strengthen performance reporting for its discretionary programs, ultimately working towards a single comprehensive reporting approach.
The Secretary's statutory and regulatory authority to administer housing and urban development programs include provisions allowing for the requirement of performance reporting from funding recipients. This legal authority is codified at 42 U.S.C. 3535(r). The individual privacy of service recipients is of the highest priority. The reporting repository established at HUD to receive data submission from funding recipients will not include any personally identifiable information (PII). Additionally, if the data from a funding recipient has 25 or fewer individuals served during a fiscal year as reported in the record-level reports, then the results for the demographic data elements for the 25 or fewer individuals will also be redacted or removed from the public-use data file and any publicly available analytical products in order to ensure the inability to identify any individual.
Eligible entities receiving funding by HUD are expected to implement the proposed recordkeeping and reporting requirements with available HUD funds. It is important to note that affected HUD funding recipients only submit a subset of all the data elements presented. The participating HUD program offices determine the specific data collection and reporting requirements, which considers the type and level of service provided by the respective HUD program.
The reporting requirements in this proposal better organize the data that participating programs collected in the past, standardize outcomes and performance measures, and allow program offices at HUD to select which data elements and performance indicators are relevant for their respective programs. Documents detailing the data elements, performance indicators, and programs are available for review by request from Anna P. Guido (
Information collected and reported will be used by funding recipients and HUD for the following purposes:
• To provide program and performance information to recipients, general public, Congress, and other stakeholders;
• To continuously improve the quality, effectiveness, and efficiency of discretionary-funded programs;
• To provide management information for use by HUD in program administration and oversight, including the scoring of applications and the monitoring of funding-recipient participation, services, and outcomes; and
• To better measure and analyze performance information to identify successful practices to be replicated and prevent or correct problematic practices and improve outcomes in compliance with the Government Performance and Results Act (GPRA) and the GPRA Modernization Act.
The data collection and reporting requirements may expand to other HUD programs. Program implementation will be determined by the program. HUD will provide technical assistance to funding recipients throughout the implementation.
This notice is soliciting comments from members of the public and affected
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Secretary, HUD.
Notice of Order of Succession for the Office of Community Planning and Development.
In this notice, the Secretary of HUD designates the Order of Succession for the Office of Community Planning and Development (CPD). This Order of Succession supersedes all prior Orders of Succession for the Assistant Secretary for Community Planning and Development, including the Order of Succession published on April 20, 2015.
August 1, 2019.
John Biechman, Field Management Officer and CPD Continuity of Operations Plan Coordinator, Office of Field Management, Office of Community Planning and Development, Department of Housing and Urban Development, 451 7th Street SW, Room 7228, Washington, DC 20410-7000, telephone number 202-402-2252 (this is not a toll-free number). Persons with hearing or speech impairments may access this telephone number via TTY by calling the Federal Relay Service, toll-free, at 1-800-877-8339.
The Secretary of HUD is issuing this Order of Succession of officials authorized to perform the functions and duties of the Office of the Assistant Secretary for Community Planning and Development when the Assistant Secretary is not available to exercise the powers or perform the duties of the office. This Order of Succession is subject to the provisions of the Federal Vacancies Reform Act of 1998 (5 U.S.C. 3345-3349d). This publication supersedes all prior orders of succession for the Office of Community Planning and Development, including the Order of Succession published in the
Subject to the provisions of the Federal Vacancies Reform Act of 1998, during any period when, by reason of absence, disability, or vacancy in office, the Assistant Secretary for Community Planning and Development is not available to exercise the powers or perform the duties of the Assistant Secretary for Community Planning and Development the following officials within the Office of Community Planning and Development are hereby designated to exercise the powers and perform the duties of the Office, including the authority to waive regulations:
(1) Principal Deputy Assistant Secretary for Community Planning and Development.
(2) General Deputy Assistant Secretary for Community Planning and Development.
(3) Deputy Assistant Secretary for Grant Programs.
(4) Deputy Assistant Secretary for Special Needs Programs.
(5) Deputy Assistant Secretary for Economic Development.
(6) Deputy Assistant Secretary for Operations.
(7) CPD Regional Office Director, Philadelphia.
(8) CPD Regional Office Director, Kansas City.
(9) CPD Regional Office Director, Boston.
These officials shall perform the functions and duties of the Office in the order specified herein, and no official shall serve unless all the other officials, whose positions precede his/hers in this order, are unable to act by reason of absence, disability, or vacancy in office. No individual who is serving in an office listed above in an acting capacity shall act as the Assistant Secretary for Community Planning and Development pursuant to this Order of Succession.
This Order of Succession supersedes all prior orders of succession for the Office of Community Planning and Development, including the one published at 80 FR 21755 on April 20, 2015.
Section 7(d), Department of Housing and Urban Development Act, 42 U.S.C. 3535(d).
Office of the Chief Information Officer, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806, Email:
Anna P. Guido, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Anna P. Guido at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
On an annual basis, HUD accepts nominations for the above listed awards. A common application form containing general information will streamline information collection across these five award programs. Each non-monetary award recognizes awardees for their innovation and commitment to raising industry standards in Housing and Community Development. Below is a brief description of each of the five awards programs.
HUD, in partnership with the Council on Foundations, announces the HUD's Secretary's Awards for Public-Philanthropic Partnerships which recognize excellence in partnerships that have both transformed the relationships between the sectors and led to measurable benefits in terms of increased economic development, health, safety, education, disaster resilience, inclusivity and cultural opportunities, and/or housing access for low- and moderate-income families. By strengthening the connection between the HUD and philanthropy, these awards highlight the power of collective impact that can be achieved through public-philanthropic partnerships between government entities and foundations.
HUD, through its Office of Lead Hazard Control and Healthy Homes (OLHCHH), and in partnership with the National Environmental Health Association (NEHA), recognizes excellence in making indoor environments healthier through healthy homes research, education, and through program delivery, especially in diverse, low to moderate income communities.
HUD, through its Office of Policy Development and Research and in partnership with The Advisory Council on Historic Preservation (ACHP) recognizes developers, organizations and agencies for their success in advancing the goals of historic preservation while providing affordable housing and/or expanded economic opportunities for low-and moderate-income families and individuals.
HUD, through its Office of Policy Development and Research, and in partnership with the American Planning Association, honors excellence in community planning that has led to measurable benefits in terms of increased economic development, employment, education, or housing choice and mobility for low- and moderate-income residents. The award stresses tangible results and recognizes
HUD, through its Office of Policy Development and Research, and in conjunction with the Residential Knowledge Community of The American Institute of Architects (AIA), recognizes excellence in affordable housing, community-based design, participatory design, and accessibility. These awards demonstrate that design matters and provide examples of important benchmarks in the housing industry. Awards are offered in four categories: Community-Informed Design, Creating Community Connection, Excellence in Affordable Housing Design, and Housing Accessibility—Alan J. Rothman.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Fish and Wildlife Service, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the U.S. Fish and Wildlife Service (Service, we), are proposing a new information collection.
Interested persons are invited to submit comments on or before October 15, 2019.
Send your comments on the information collection request by mail to the Service Information Collection Clearance Officer, U.S. Fish and Wildlife Service, MS: JAO/1N PRB/PERMA, 5275 Leesburg Pike, Falls Church, VA 22041-3803 (mail); or by email to
To request additional information about this ICR, contact Madonna L. Baucum, Service Information Collection Clearance Officer, by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are soliciting comments on the proposed information collection request (ICR) that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of the Service; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Service enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Service minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. 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.
(1) Migratory Bird Treaty Act (16 U.S.C. 703
(2) Lacey Act (16 U.S.C. 3371
(3) Bald and Golden Eagle Protection Act (16 U.S.C. 668).
Beginning in 2014, the Service passed the authority to issue permits for the practice of falconry to individual States (50 CFR 21.29, 78 FR 72832). As part of this change in authority, we required States to maintain databases of falconers authorized to conduct falconry in their States and required falconers to report transfers of falconry birds using the paper version of FWS Form 3-186A. We require each State that maintains its own database to ensure that it is compatible with the Service's database. To date, 47 States utilize the system provided by the Service. The Service's database continues to track take of birds from the wild by falconers and to maintain records of persons permitted by the States to practice falconry, as required by 50 CFR 21.29(k)(1).
In 2018, the Service requested and received OMB approval under the Department of the Interior Fast Track generic clearance (OMB Control No. 1090-0011) to conduct usability testing of the revised/repaired application and database functionality. This new
The database is a web-based application designed to monitor falconry activities throughout the United States. The process involves keeping track of falconry acquisitions and dispositions among falconry permit holders. This process requires falconer and/or propagator permit holders to report their activities by filling out electronic falconry applications.
Falconers and State administrators must register to use the database. States that participate in the falconry application must first contact the Service's Division of Migratory Birds located in Virginia to create a profile in the database. Each State is required to have at least one person acting as State representative or administrator. Information collected from States to create new falconer profiles includes the user's State, access role, and basic contact information.
A falconer must first apply for a falconry permit in his/her State. Once the permit is approved by the State permit issuing office, the State administrator will create the new falconer profile by entering the falconer's State, class, basic contact information, and permit information to include number, date issued, and expiration date into the database. Additionally, a falconer is required to notify his/her State 30 days in advance via email of any change in address or the location of the facilities where birds are held.
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 authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Fish and Wildlife Service, Interior.
Notice of availability.
We, the U.S. Fish and Wildlife Service (USFWS), have prepared a final environmental impact report/environmental impact statement (EIR/EIS) under the National Environmental Policy Act (NEPA) of 1969 and its implementing regulations. The final EIR/EIS evaluates impacts regarding construction and operation of the Delta Research Station (DRS) in the San Francisco Bay/Sacramento-San Joaquin Delta Estuary, California. The planned DRS would consist of two facilities, a proposed Estuarine Research Station and a Fish Technology Center. The USFWS is the lead Federal agency responsible for coordinating the environmental analysis for the proposed action under NEPA. The California Department of Water Resources is the lead State agency responsible for coordinating the environmental analysis under the California Environmental Quality Act.
We must receive any comments on the final EIR/EIS by 5 p.m. on September 12, 2019. We will sign a record of decision no sooner than 30 days after the publication of the Environmental Protection Agency (EPA) notice of the final EIS in the
To view or download the Final EIR/EIS, or for a list of locations to view hard-bound copies, go to
Barbara Beggs, at 916-930-5603 (phone) or
We, the U.S. Fish and Wildlife Service (USFWS), have prepared a Final Environmental Impact Report/Environmental Impact Statement (EIR/EIS) under the National Environmental Policy Act (NEPA) of 1969, as amended (42 U.S.C. 4321
On December 10, 2014, the USFWS issued a Notice of Intent (NOI) to prepare an EIR/EIS on the DRS (79 FR 73332;
The proposed project consists of construction and operation of two facilities, a proposed Estuarine Research Station (ERS) and a Fish Technology Center (FTC). Collectively, these facilities are intended to serve as an aquatic research and monitoring facility that is located in a centralized area of the Bay-Delta. The project reflects the outcome of a multiyear collaboration between DWR, USFWS, California Department of Fish and Wildlife, and other agencies involved in the Interagency Ecological Program (IEP).
The DRS would consolidate ongoing Interagency Ecological Program (IEP) research and monitoring activities throughout the Bay-Delta and provide facilities for study and production of endangered Delta fishes. Currently, the IEP has approximately 145 State and Federal employees that conduct research throughout the Bay-Delta. The IEP collaboratively monitors, researches, models, and synthesizes critical information for adaptive management water project operations and planning and regulatory purposes relative to the aquatic ecosystem in the Bay-Delta. USFWS and DWR plan to construct the DRS in a centrally located area within the Bay-Delta, and the facilities are expected to enhance interagency coordination and collaboration.
The purpose of the DRS is to enhance interagency coordination and collaboration by developing a shared facility. Currently, Federal and State agency staff working on similar Bay-Delta issues are distributed among different locations that are often remote from the Bay-Delta. Construction and operation of the DRS would reduce travel times and costs and improve research and monitoring activity efficiency. The DRS would consolidate existing IEP programs currently located throughout the Delta, and the FTC would house a new program to develop and apply captive fish propagation technologies in support of population restoration.
The Draft EIR/EIS evaluated the potential impacts of three action alternatives, as well as the No Project Alternative: The No Project Alternative (DWR and USFWS would not construct the ERS or FTC); Alternative 2 (the ERS and FTC facilities would be consolidated in the predominantly undeveloped portions of the Rio Vista Army Reserve Center site); Alternative 3 (the ERS facilities would involve rehabilitation and reuse of existing facilities); and Alternative 4 (the ERS and FTC facilities would be located at the 845 Ryde Avenue site in Stockton). California Department of Water Resources (DWR), the CEQA lead agency, identified Alternative 2 as the proposed project and USFWS has selected Alternative 2 as the NEPA preferred alternative.
Since publication of the Draft EIR/EIS, Alternative 2 was modified such that the new marina would be partially excavated inland, as opposed to being entirely located within the existing Sacramento River channel (as it was described in the Draft EIR/EIS). The Final EIR/EIS described and analyzed project modifications and refinements to Alternative 2 (Rio Vista Army Reserve Center—Configuration 1). This modified alternative consists of developing the ERS and FTC facilities on the southern edge of Rio Vista. The ERS and FTC facilities would be consolidated in the predominantly undeveloped portions of the site, and the marina would be established in the Sacramento River at the southeastern end of the site. The facilities layout of the modified Alternative 2 would be very similar to that which is described in the Draft EIR/EIS, with the exception that some building footprints would be shifted westerly to accommodate the partially excavated marina. These modifications were made in response to comments from the Army Corps of Engineers and did not result in substantial changes in the proposed action relevant to environmental concerns. Therefore, a supplement was not required under 40 CFR 1502.9(c)(1)(i).
The Final EIR/EIS contains responses to all substantive comments received on the Draft EIR/EIS, reflects comments and any information received during the review period, and includes revisions to the environmental analysis to reflect modifications to Alternative 2.
DWR's certification of the EIR and final decision-making under the CEQA occurred May 18, 2017. USFWS will not sign the Record of Decision until at least 30 days after EPA publishes a notice of availability of the Final EIR/EIS.
The EPA is charged under section 309 of the Clean Air Act to review all Federal agencies' EISs and to comment on the adequacy and the acceptability of the environmental impacts of proposed actions in the EISs.
EPA also serves as the repository (EIS database) for EISs prepared by Federal agencies and provides notice of their availability in the
For more information, see
All comments received, including names and addresses, will become part of the decision record for this action and will be available to the public. 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—will be publicly available. If you submit a hardcopy comment that includes personal identifying information, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.
This notice is published in accordance with the requirements of National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321
Fish and Wildlife Service, Interior.
Notice of receipt of permit application; request for comments.
We, the U.S. Fish and Wildlife Service, have received an application for a permit to conduct activities intended to enhance the propagation and survival of endangered species under the Endangered Species Act of 1973, as amended. We invite the public and local, State, Tribal, and Federal agencies to comment on this application. Before issuing the requested permit, we will take into consideration any information that we receive during the public comment period.
We must receive your written comments on or before September 12, 2019.
•
•
Colleen Henson, Regional Recovery Permit Coordinator, Ecological Services, (503) 231-6131 (phone);
We, the U.S. Fish and Wildlife Service, invite the public to comment on an application for a permit under section 10(a)(1)(A) of the Endangered Species Act, as amended (ESA; 16 U.S.C. 1531
With some exceptions, the ESA prohibits activities that constitute take of listed species unless a Federal permit is issued that allows such activity. The ESA's definition of “take” includes such activities as pursuing, harassing, trapping, capturing, or collecting, in addition to hunting, shooting, harming, wounding, or killing.
A recovery permit issued by us under section 10(a)(1)(A) of the ESA authorizes the permittee to conduct activities with endangered or threatened species for scientific purposes that promote recovery or for enhancement of propagation or survival of the species. These activities often include such prohibited actions as capture and collection. Our regulations implementing section 10(a)(1)(A) for these permits are found in the Code of Federal Regulations (CFR) at 50 CFR 17.22 for endangered wildlife species, 50 CFR 17.32 for threatened wildlife species, 50 CFR 17.62 for endangered plant species, and 50 CFR 17.72 for threatened plant species.
Proposed activities in the following permit request are for the recovery and enhancement of propagation or survival of the species in the wild. The ESA requires that we invite public comment before issuing this permit. Accordingly, we invite local, State, Tribal, and Federal agencies and the public to submit written data, views, or arguments with respect to this application. The comments and recommendations that will be most useful and likely to influence agency decisions are those supported by quantitative information or studies.
Written comments we receive become part of the administrative record associated with this action. 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 request in your comment that we withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so. All submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, will be made available for public disclosure in their entirety.
If we decide to issue a permit to the applicant listed in this notice, we will publish a notice in the
We publish this notice under section 10(c) 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, the Bureau of Land Management's (BLM) Las Cruces District Resource Advisory Council (RAC) will meet as indicated below.
The RAC will hold a public meeting on Wednesday, September 11, 2019 from 9 a.m. to 2:30 p.m. The public comment period is scheduled for 2 p.m.
The meeting will be held at the BLM Las Cruces District Office, 1800 Marquess Street, Las Cruces, NM 88001.
Deborah Stevens, BLM Las Cruces District, 1800 Marquess Street, Las Cruces, NM 88001, 575-525-4421. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8229, to contact the above individual during normal business hours. The FRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The 10-member Las Cruces District RAC advises the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with public land management in the Las Cruces District.
Planned agenda items include updates on current and proposed projects in the Las Cruces District, including lands/realty, planning, and energy projects. There will also be updates on the John D. Dingell Jr. Conservation, Management and Recreation Act and its effects on the District as well as a presentation from the U.S. Forest Service on recreation fees.
The meeting is open to the public. Persons wishing to make comments during the public comment period should register in person with the BLM by 1:00 p.m. on the meeting day, at the meeting location. Depending on the number of persons wishing to comment, the length of comments may be limited. The public may send written comments to the RAC at the BLM Las Cruces District Office, 1800 Marquess Street, Las Cruces, NM 88001.
43 CFR 1784.4-1.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of expedited reviews pursuant to the Tariff Act of 1930 (“the Act”) to determine whether revocation of the antidumping duty orders on uncovered innerspring units from China, South Africa, and Vietnam would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.
June 4, 2019.
Jason Duncan (202) 205-3160, Office of Investigations, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
For further information concerning the conduct of these reviews and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the reviews must be served on all other parties to the reviews (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These reviews are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
The Foreign Claims Settlement Commission, pursuant to its regulations (45 CFR part 503.25) and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice in regard to the scheduling of open meetings as follows:
Thursday, August 22, 2019, at 10:00 a.m.
All meetings are held at the Foreign Claims Settlement Commission, 441 G St NW, Room 6234, Washington, DC.
Open.
Requests for information, or advance notices of intention to observe an open meeting, may be directed to: Patricia M. Hall, Foreign Claims Settlement Commission, 441 G St NW, Room 6234, Washington, DC 20579. Telephone: (202) 616-6975.
Office of Justice Programs, Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Office of Justice Programs will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection is published to obtain comments from the public and affected agencies.
Comments are encouraged and will be accepted for 60 days until October 15, 2019.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Maria Swineford, Office of Audit, Assessment, and Management, 810 7th Street NW, Washington, DC 20531. (Phone: 202-514-2000.)
This process is conducted in accordance with 5 CFR 1320.10. Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
The estimated total public burden associated with this information is 3,500.
If additional information is required contact: Melody Braswell, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE, 3E.405A, Washington, DC 20530.
This notice announces a forthcoming meeting of the National Institute of Corrections (NIC) Advisory Board. The meeting will be open to the public.
Pursuant to the authority contained in Section 512 of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. 1142, the 197th meeting of the Advisory Council on Employee Welfare and Pension Benefit Plans (also known as the ERISA Advisory Council) will be held on August 27-29, 2019.
The three-day meeting will take place at the U.S. Department of Labor, 200 Constitution Avenue NW, Washington, DC 20210 in N5437 A-C. The meeting will run from 1:00 p.m. to approximately 5:30 p.m. on August 27, from 9:00 a.m. to approximately 5:30 p.m. on August 28 with a one hour break for lunch, and from 9:00 a.m. to 11:00 a.m. on August 29. The purpose of the open meeting is for Advisory Council members to hear testimony from invited witnesses and to receive an update from the Employee Benefits Security Administration (EBSA). The EBSA update is scheduled for the morning of August 29, subject to change.
The Advisory Council will study the following topics: (1) Beyond Plan Audit Compliance: Improving the Financial Statement Audit Process (on August 27); and, (2) Permissive Transfers of Uncashed Checks from ERISA Plans to State Unclaimed Property Funds (on August 28). The Advisory Council will continue with discussions of its topics on August 29. Descriptions of these topics are available on the Advisory Council page of the EBSA website, at
Organizations or members of the public wishing to make a written submission may do so by sending 40 copies on or before August 20, 2019, to Larry Good, Executive Secretary, ERISA Advisory Council, U.S. Department of Labor, Suite N-5623, 200 Constitution Avenue NW, Washington, DC 20210. Submissions may be sent as email attachments in word processing or pdf format transmitted to
Individuals or representatives of organizations wishing to address the Advisory Council should forward their requests to the Executive Secretary or telephone (202) 693-8668. Oral presentations will be limited to 10 minutes, time permitting, but an extended statement may be submitted for the record. Individuals with disabilities who need special accommodations should contact the Executive Secretary by August 20.
National Aeronautics and Space Administration (NASA).
Notice of meeting.
In accordance with the Federal Advisory Committee Act, the National Aeronautics and Space Administration announces a forthcoming meeting of the Aerospace Safety Advisory Panel.
Friday, September 6, 2019, 11:30 a.m. to 12:45 p.m., Central Time.
NASA Johnson Space Center, Building 1, Room 966, 2101 NASA Parkway, Houston, TX 77058.
Ms. Lisa M. Hackley, Aerospace Safety Advisory Panel Administrative Officer, NASA Headquarters, Washington, DC 20546, (202) 358-1947, or email at
The Aerospace Safety Advisory Panel (ASAP) will hold its Fourth Quarterly Meeting for 2019. This discussion is pursuant to carrying out its statutory duties for which the Panel reviews, identifies, evaluates, and advises on those program activities, systems, procedures, and management activities that can contribute to program risk. Priority is given to those programs that involve the safety of human flight. The agenda will include:
The meeting will be open to the public up to the seating capacity of the room. Seating will be on a first-come basis. This meeting is also available telephonically. Any interested person may call the USA toll free conference call number (888) 603-9748; pass code 7339697. Attendees will be required to sign a visitor's register and to comply with NASA security requirements, including the presentation of a valid picture ID, before receiving an access badge. Any member of the public desiring to attend the ASAP 2019 Fourth Quarterly Meeting at the Johnson Space Center must provide their full name and company affiliation (if applicable) to Ms. Stephanie Castillo at
At the beginning of the meeting, members of the public may make a verbal presentation to the Panel on the subject of safety in NASA, not to exceed 5-minutes in length. To do so, members of the public must contact Ms. Lisa M. Hackley at
In accordance with the Federal Advisory Committee Act (Pub. L. 92-463, as amended), the National Science Foundation (NSF) announces the following meeting:
September 5, 2019; 8:15 a.m.-5:00 p.m.
September 6, 2019; 8:45 a.m.-3:00 p.m.
The National Science Board, pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives notice of the scheduling of a teleconference for the transaction of National Science Board business, as follows:
Closed teleconference of the National Science Board, to be held Thursday, August 15, 2019 at 9:15—10:00 a.m. EDT.
This meeting will be held by teleconference at the National Science Foundation, 2415 Eisenhower Avenue, Alexandria, VA 22314.
Closed.
NSB Chair's Opening Remarks; and presentation and vote on 2021 Budget Submissions to the Office of Management and Budget for the National Science Foundation, the National Science Board and the Office of the Inspector General.
Point of contact for this meeting is: Brad Gutierrez, 2415 Eisenhower Avenue, Alexandria, VA 22314. Telephone: (703) 292-7000.
You may find meeting information and updates (time, place, subject matter or status of meeting) at
Nuclear Regulatory Commission.
Biweekly notice.
Pursuant to 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 July 16, 2019, to July 29, 2019. The last biweekly notice was published on July 30, 2019.
Comments must be filed by September 12, 2019. A request for a hearing must be filed by October 15, 2019.
You may submit comments by any of the following methods:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Lynn Ronewicz, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington DC 20555-0001; telephone: 301-415-1927, email:
Please refer to Docket ID NRC-2019-0162, facility name, unit number(s), plant docket number, application date, and subject when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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Please include Docket ID NRC-2019-0162, facility name, unit number(s), plant docket number, application date, and subject in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
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.
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in § 50.92 of title 10 of the
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period if circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example, in derating or shutdown of the facility. If the Commission takes action prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene (petition) with respect to the action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309. The NRC's regulations are accessible electronically from the NRC Library on the NRC's website at
As required by 10 CFR 2.309(d) the petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements for standing: (1) The name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest.
In accordance with 10 CFR 2.309(f), the petition must also set forth the specific contentions which the petitioner seeks to have litigated in the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner must provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. Contentions must be limited to matters within the scope of the proceeding. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to satisfy the requirements at 10 CFR 2.309(f) 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. Parties have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that party's admitted contentions, including the opportunity to present evidence, consistent with the NRC's regulations, policies, and procedures.
Petitions must be filed no later than 60 days from the date of publication of this notice. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii). The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document.
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to establish when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of the amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission no later than 60 days from the date of publication of this notice. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or Federally-recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. Alternatively, a State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may participate as a non-party under 10 CFR 2.315(c).
If a hearing is granted, any person who is not a party to the proceeding and is not affiliated with or represented by a party may, at the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of his or her position on the issues but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any
All documents filed in NRC adjudicatory proceedings, including a request for hearing and petition for leave to intervene (petition), any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities that request to participate under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562; August 3, 2012). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Detailed guidance on making electronic submissions may be found in the Guidance for Electronic Submissions to the NRC and on the NRC website at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public website 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 stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing adjudicatory documents in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
For further details with respect to these license amendment application(s), see the application for amendment which is available for public inspection in ADAMS and at the NRC's PDR. For additional direction on accessing information related to this document, see the “Obtaining Information and Submitting Comments” section of this document.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed changes clarify Required Actions and Completion Times for both Units when a battery charger is inoperable on one Unit. The DC [direct current] electrical power system, including associated battery chargers, is not an initiator of any accident sequence analyzed in the Updated Final Safety Analysis Report (UFSAR). Operation in accordance with the proposed TS ensures that the DC electrical power system is capable of performing its function as described in the UFSAR. Therefore, the mitigative functions supported by the DC electrical power system will continue to provide the protection assumed by the analysis, and the probability of previously analyzed accidents will not increase by implementing these changes. The proposed changes permit both Units to implement TSTF-500 [Technical Specifications Task Force], “DC Electrical Rewrite-Update to TSTF-360,” as fully intended.
The integrity of fission product barriers, plant configuration, and operating procedures as described in the UFSAR will not be affected by the proposed changes. Therefore, the consequences of previously analyzed accidents will not increase by implementing these changes.
The proposed changes do 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; therefore, there is no impact to the probability or consequences of an accident previously evaluated.
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?
The proposed changes involve restructuring the TS for the DC electrical power system. The DC electrical power system, including associated battery chargers, is not an initiator to any accident sequence analyzed in the UFSAR. The DC electrical power system provides power to equipment used to mitigate an accident.
The proposed changes do 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; therefore, it does not create the possibility of a new or different accident previously evaluated.
Therefore, 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?
The margin of safety is established through equipment design, operating parameters, and the setpoints at which automatic actions are initiated. The proposed changes will not adversely affect operation of plant equipment. The proposed changes will not result in a change to the setpoints at which protective actions are initiated. Sufficient DC power and capacity to support operation of mitigation equipment is ensured. The DC electrical power subsystems will continue to provide adequate power to safety related equipment in accordance with safety analysis assumptions.
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.
1. Does the proposed change involve a significant increase in the probability of occurrence or consequences of an accident previously evaluated?
The proposed TS change involves deletion of an SR [surveillance requirement]. The SR to be deleted verifies the availability of the DGs in a configuration that will no longer be possible. Neither the DGs nor the associated SR are accident initiators. The safety function of the DGs is to mitigate the consequences of an accident. The availability or unavailability of the DGs does not affect the likelihood that the accident they are designed to mitigate will occur. The presence or absence of the SR does no cause or prevent an accident from occurring. Therefore the probability of a previously evaluated accident will not be significantly increased.
The DGs are designed to mitigate the consequences of a previously evaluated accident. The function of the SR to be deleted is solely to assure the availability of the DG when connected to its load test resistor bank. That configuration will no longer occur. The test conditions that will occur are addressed by another SR that is not affected by the proposed change. The unaffected SR will continue to provide assurance that the availability of the DG to mitigate the previously evaluated accident is not compromised when the DG is connected to the bus used for testing. Other systems, structures, and components required for the mitigation of an accident are unaffected by the proposed change.
Therefore, the proposed amendment 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?
No new accident scenarios, failure mechanisms, or single failures will be introduced as a result of the proposed change to delete an SR. The proposed SR deletion will have no adverse effects on any safety-related systems or components and will not challenge the performance or integrity of any safety-related system. There will be no changes to the methods by which any safety-related plant system performs its safety function. The DG testing using grid and plant component loads does not involve operation of any structure, system, or component outside its established design boundaries. The proposed deletion of an SR will not involve a change in plant operational parameter.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
The margin of safety applicable to the proposed change is the amount by which the
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 requests involve no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed relocation of Technical Specifications 3/4.9.3 and 3/4.9.12 to the Salem TRM does not alter the requirements for component operability or surveillance currently in the Technical Specifications. The proposed change to remove these requirements from the Technical Specifications and relocate the information to an administratively controlled document will have no impact on any safety related structure, system or component (SSC).
The decay time and the Fuel Handling Area Ventilation System (FHAVS) are not initiators of any analyzed event in the Updated Final Safety Analysis Report (UFSAR). The proposed changes do not alter the design of the FHAVS or any other SSC. The consequences of the fuel handling accident (FHA) in the fuel handling building (FHB) are not altered by this change. The proposed changes conform to NRC regulatory guidance regarding the content of plant TS, as identified in 10 CFR 50.36, NUREG-1431, and the NRC Final Policy Statement on Technical Specifications Improvements for Nuclear Power Reactors in 58 FR 39132.
Therefore, these 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 previously evaluated?
The proposed change to the TS would relocate the decay time and FHAVS requirements to the Salem TRM. The proposed change does not involve a modification to the physical configuration of the plant or change in the methods governing normal plant operation. The proposed changes will not impose any new or different requirement or introduce a new accident initiator, accident precursor, or malfunction mechanism.
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?
The proposed relocation of Technical Specifications 3/4.9.3 and 3/4.9.12 to the Salem TRM does not alter the requirements for component operability or surveillance currently in the Technical Specifications. The proposed change to remove these requirements from the Technical Specifications and relocate the information to an administratively controlled document does not alter any assumptions in the Salem FHA analysis in the FHB. Future revisions to the TRM will be subject to review pursuant to 10 CFR 50.59.
The proposed amendment will not result in a design basis or safety limit being exceeded or altered. The assumptions of the FHA are not altered by the proposed amendment.
Therefore, since the proposed changes do not impact the response of the plant to a design basis accident, 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?
The proposed change revises the TS definitions of Channel Calibration and Channel Functional Test to allow the frequency for testing the components or devices in each step to be determined in accordance with the TS Surveillance Frequency Control Program. All components in the channel continue to be calibrated and tested. The frequency at which a channel is tested or calibrated is not an initiator of any accident previously evaluated, so the probability of an accident is not affected by the proposed change. The channels surveilled in accordance with the affected definitions continue to be required to be operable and the acceptance criteria of the surveillances are unchanged. As a result, any mitigating functions assumed in the accident analysis will continue to be performed.
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 previously evaluated?
The proposed change revises the TS definitions of Channel Calibration and Channel Functional Test to allow the frequency for testing the components or devices in each step to be determined in accordance with the TS Surveillance Frequency Control Program. All components in the channel continue to be calibrated and tested. The design function or operation of the components involved are not affected and there is no physical alteration of the plant (
Therefore, the proposed change does not create the possibility of a new or different
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The proposed change revises the TS definitions of Channel Calibration and Channel Functional Test to allow the frequency for testing the components or devices in each step to be determined in accordance with the TS Surveillance Frequency Control Program. All components in the channel continue to be calibrated and tested. The Surveillance Frequency Control Program assures sufficient safety margins are maintained, and that design, operation, surveillance methods, and acceptance criteria specified in applicable codes and standards (or alternatives approved for use by the NRC) will continue to be met as described in the plants' licensing basis. The proposed change does not adversely affect existing plant safety margins, or the reliability of the equipment assumed to operate in the safety analysis. As such, there are no changes being made to safety analysis assumptions, safety limits, or limiting safety system settings that would adversely affect plant safety as a result of the proposed change. Margins of safety are unaffected by method of determining surveillance test intervals under an NRC-approved licensee-controlled program.
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?
The proposed amendment, which eliminates two Chemistry technicians from the Emergency Response Organization minimum staffing, has no effect on normal plant operation or on any accident initiator or precursors and does not impact the function of plant structures, systems, or components. The proposed changes do 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 involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed amendment does not impact any accident analysis. The change does not involve a physical alteration of the plant (
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?
Margin of safety is associated with confidence in the ability of the fission product barriers (
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 consequence of an accident previously evaluated?
The proposed changes are all administrative in nature. Administrative changes such as this are not initiators of any accident previously evaluated. As a result, the probability of an accident previously evaluated is not affected. The consequences of an accident with the incorporation of these administrative changes are not different than the consequences of the same accident without this change. As a result, the consequences of an accident previously evaluated are not affected by this change.
Based on the above, it is concluded that the proposed changes do not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed changes do not modify the plant design, nor do the proposed changes alter the operation of the plant or equipment involved in either routine plant operation or in the mitigation of design basis accidents. The proposed changes are administrative only.
Based on the above, it is concluded that 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?
The proposed changes are administrative in nature. The changes do 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 changes will not result in plant operation in a configuration outside of the design basis. 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.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change provides a 24-hour CT for restoration of an inoperable RTB: RPS [Reactor Protection System] performance will remain within the bounds of the previously performed accident analyses since no change to reactor trip instrumentation or plant hardware is being made. The RPS will continue to function in a manner consistent with the plant design basis.
The proposed change does not modify any system interfaces and does not affect the probability of any event initiators. There will be no degradation in the performance of, or an increase in the number of challenges imposed on, safety-related equipment assumed to function during an accident situation. There is no change to normal plant operating parameters or accident mitigation performance.
The determination that the results of the proposed change are acceptable was established in the NRC Safety Evaluation (SE) prepared for WCAP-15376-P-A. Implementation of the proposed change will result in an insignificant risk impact. Applicability of these conclusions has been verified through plant-specific reviews and implementation of the generic analysis results in accordance with the NRC SE conditions.
The proposed change to add the CT reduces the potential for unnecessary entries into TS action statements and resultant plant transients and, therefore, does not increase the probability of any accident previously evaluated. The proposed change does not alter the response of the plant to any accidents. The RPS instrumentation and RTBs will remain highly reliable, and the proposed changes will not result in a significant increase to the risk of plant operation. The PRA [Probabilistic Risk Assessment] performed for the proposed CT change is based on justification presented in NRC approved WCAP-15376. The PRA concluded that the increase in risk associated with the proposed change is consistent with the RG 1.174 [Regulatory Guide] and RG 1.177 acceptance guidelines for a permanent TS CT change. The PRA demonstrates that defense-in-depth will not be significantly impacted by allowing a single RTB to be inoperable for up to 24 hours.
A detailed review of PRA importance metrics (Risk Achievement Worth, FussellVesely) from the Tier 1 PRA model did not reveal any risk significant maintenance configurations when one RTB is unavailable. To maintain appropriate measures of defense in depth, no maintenance will be planned on the AMSAC [Mitigating System Actuation Circuitry] system while one RTB is inoperable. No additional enhancements, procedure revisions or compensatory actions are recommended from the Tier 2 evaluation.
Therefore, it is concluded that this change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change provides a 24-hour CT for restoration of an inoperable RTB. There are no hardware changes, nor are there any changes in the method by which any safety related plant system performs its safety function. The proposed change does not affect the normal method of plant operation and does not result in physical alteration to any plant system. The proposed change does not include any changes to instrumentation setpoints or changes to accident analysis assumptions. No new accident scenarios, transient precursors, failure mechanisms, or limiting single failures are introduced as a result of this change. There will be no adverse effects or challenges imposed on any safety-related system as a result of the proposed change.
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?
The proposed change provides a 24-hour CT for restoration of an inoperable RTB. The proposed change does not adversely affect any current plant safety margins or the reliability of equipment assumed in the safety analysis. There are no changes being made to any safety analysis assumptions, safety limits, or limiting safety system settings that would adversely affect plant safety. Furthermore, as noted above, a supporting PRA was performed for the proposed CT. The PRA concluded that the increase in risk associated with the proposed change is consistent with the RG 1.174 and RG 1.177 acceptance guidelines for a permanent TS CT change. This PRA demonstrates that defense-in-depth will not be significantly impacted by allowing a single RTB to be inoperable for up to 24 hours.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
The following notices were previously published as separate individual notices. The notice content was the same as above. They were published as individual notices either because time
For details, see the individual notice in the
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR chapter I, which are set forth in the license amendment.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, proposed no significant hazards consideration determination, and opportunity for a hearing in connection with these actions, was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items can be accessed as described in the “Obtaining Information and Submitting Comments” section of this document.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated July 17, 2019.
Duke Energy Progress, LLC, Docket No. 50-400, Shearon Harris Nuclear Power Plant, Unit 1, Wake and Chatham Counties, North Carolina
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated July 18, 2019.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated July 16, 2019.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated July 16, 2019.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated July 25, 2019.
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 for the amendment 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.
Because of exigent or emergency circumstances associated with the date the amendment was needed, there was not time for the Commission to publish, for public comment before issuance, its usual notice of consideration of issuance of amendment, proposed no significant hazards consideration determination, and opportunity for a hearing.
For exigent circumstances, the Commission has either issued a
In circumstances where failure to act in a timely way would have resulted, for example, in derating or shutdown of a nuclear power plant or in prevention of either resumption of operation or of increase in power output up to the plant's licensed power level, the Commission may not have had an opportunity to provide for public comment on its no significant hazards consideration determination. In such case, the license amendment has been issued without opportunity for comment. If there has been some time for public comment but less than 30
Under its regulations, the Commission may issue and make an amendment immediately effective, notwithstanding the pendency before it of a request for a hearing from any person, in advance of the holding and completion of any required hearing, where it has determined that no significant hazards consideration is involved.
The Commission has applied the standards of 10 CFR 50.92 and has made a final determination that the amendment involves no significant hazards consideration. The basis for this determination is contained in the documents related to this action. Accordingly, the amendments have been issued and made effective as indicated.
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 51.12(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 application for amendment, (2) the amendment to Facility Operating License or Combined License, as applicable, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment, as indicated. All of these items can be accessed as described in the “Obtaining Information and Submitting Comments” section of this document.
The Commission is also offering an opportunity for a hearing with respect to the issuance of the amendment. Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene (petition) with respect to the action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309. The NRC's regulations are accessible electronically from the NRC Library on the NRC's website at
As required by 10 CFR 2.309(d) the petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements for standing: (1) The name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the petitioner's interest.
In accordance with 10 CFR 2.309(f), the petition must also set forth the specific contentions which the petitioner seeks to have litigated in the proceeding. Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner must provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. Contentions must be limited to matters within the scope of the proceeding. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to satisfy the requirements at 10 CFR 2.309(f) 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. Parties have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that party's admitted contentions, including the opportunity to present evidence, consistent with the NRC's regulations, policies, and procedures.
Petitions must be filed no later than 60 days from the date of publication of this notice. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii). The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document.
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to establish when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of the amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission no later than 60 days from the date of publication of this notice. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or Federally-recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. Alternatively, a State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may participate as a non-party under 10 CFR 2.315(c).
If a hearing is granted, any person who is not a party to the proceeding and is not affiliated with or represented by a party may, at the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of his or her position on the issues but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by the presiding officer if such sessions are scheduled.
All documents filed in NRC adjudicatory proceedings, including a request for hearing and petition for leave to intervene (petition), any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities that request to participate under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562; August 3, 2012). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet, or in some cases to mail copies on electronic storage media. Detailed guidance on making electronic submissions may be found in the Guidance for Electronic Submissions to the NRC and on the NRC website at
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public website 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 stating why there is good cause for not filing electronically and requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing adjudicatory documents in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
By letter dated July 24, 2019, the licensee supplemented its license amendment request dated July 19, 2019, to request the deferral of certain surveillance requirements on the remaining emergency diesel generators until after the completion of the proposed extended allowed outage time. By letter dated July 25, 2019, the licensee withdrew its request to defer performance of the surveillance requirements based on the current repair schedule for the inoperable emergency diesel generator. The licensee stated that its July 25, 2019, letter replaced the July 24, 2019, letter in its entirety. As a result, the NRC staff only reviewed the changes requested in the licensee's July 19, 2019, request, as supplemented by the licensee's letter dated July 25, 2019.
The Commission's related evaluation of the amendment, finding of exigent circumstances, State consultation, and final NSHC determination are contained in a Safety Evaluation dated July 26, 2019.
The licensee also added License Condition 2.C.(26) to the Renewed Facility Operating License to implement the compensatory measures described in Section 3.8, “Additional Compensatory Measures,” of the enclosure during the timeframe the RVLIS upper range level channels are not required to be operable for the remainder of Cycle 23. If the RVLIS upper range level channels are returned to operable status prior to the end of Cycle 23, then these compensatory measures will no longer be required.
The Commission's related evaluation of the amendment, finding of exigent circumstances, State consultation, and final NSHC determination are contained in a Safety Evaluation dated July 18, 2019.
For the Nuclear Regulatory Commission.
Weeks of August 12, 19, 26, September 2, 9, 16, 2019.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
This hearing will be webcast live at the Web address—
There are no meetings scheduled for the week of August 19, 2019.
There are no meetings scheduled for the week of August 26, 2019.
There are no meetings scheduled for the week of September 16, 2019.
For more information or to verify the status of meetings, contact Denise McGovern at 301-415-0681 or via email at
The NRC Commission Meeting Schedule can be found on the internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301-415-1969), or by email at
The NRC is holding the meetings under the authority of the Government in the Sunshine Act, 5 U.S.C. 552b.
For the Nuclear Regulatory Commission.
U.S. Nuclear Regulatory Commission.
Notice of meeting.
The U.S. Nuclear Regulatory Commission (NRC) will convene a meeting of the Advisory Committee on the Medical Uses of Isotopes (ACMUI) on September 10-11, 2019. A sample of agenda items to be discussed during the public session includes: (1) An update on medical-related events; (2) a discussion of the ACMUI's recommendations and comments on the draft Xcision® GammaPod Licensing Guidance; (3) a discussion on the status of emerging technologies licensed under Title 10
Christopher J. Palestro, M.D. will chair the meeting. Dr. Palestro will conduct the meeting in a manner that will facilitate the orderly conduct of business. The following procedures apply to public participation in the meeting:
1. Persons who wish to provide a written statement should submit an electronic copy to Ms. Jamerson using the contact information listed above. All submittals must be received by September 5, 2019, three business days before the meeting, and must pertain to the topics on the agenda for the meeting.
2. Questions and comments from members of the public will be permitted during the meeting, at the discretion of the Chairman.
3. The draft transcript and meeting summary will be available on ACMUI's website
4. Persons who require special services, such as those for the hearing impaired, should notify Ms. Jamerson of their planned attendance.
This meeting will be held in accordance with the Atomic Energy Act of 1954, as amended (primarily Section 161a); the Federal Advisory Committee Act (5 U.S.C. App); and the Commission's regulations in Title 10 of the
For the U.S. Nuclear Regulatory Commission.
1:00 p.m., Wednesday, September 4, 2019.
Offices of the Corporation, Twelfth Floor Board Room, 1100 New York Avenue NW, Washington, DC.
Hearing OPEN to the Public at 1:00 pm.
This will be a Public Hearing, held in conjunction with each meeting of OPIC's Board of Directors, to afford an opportunity for any person to present views regarding the activities of the Corporation.
Individuals wishing to address the hearing orally must provide advance notice to OPIC's Corporate Secretary no later than 5 p.m., Tuesday, August 27, 2019. The notice must include the individual's name, title, organization, address, and telephone number, and a concise summary of the subject matter to be presented.
Oral presentations may not exceed ten (10) minutes. The time for individual presentations may be reduced proportionately, if necessary, to afford all participants who have submitted a timely request an opportunity to be heard.
Participants wishing to submit a written statement for the record must submit a copy of such statement to OPIC's Corporate Secretary no later than 5 p.m. Tuesday, August 27, 2019. Such statement must be typewritten, double spaced, and may not exceed twenty-five (25) pages.
Upon receipt of the required notice, OPIC will prepare an agenda, which will be available at the hearing, that
A written summary of the hearing will be compiled, and such summary will be made available, upon written request to OPIC's Corporate Secretary, at the cost of reproduction.
Written summaries of the projects to be presented at the September 11, 2019, Board meeting will be posted on OPIC's website.
Information on the hearing may be obtained from Catherine F. I. Andrade at (202) 336-8768, via facsimile at (202) 408-0297, or via email at
On November 29, 2018, The Depository Trust Company (“DTC”), filed with the Securities and Exchange Commission (“Commission”) a proposed rule change, pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change was published for comment in the
On June 28, 2019, DTC filed Amendment No. 1 to the proposed rule change to provide status information to a matching utility even if that matching utility did not submit a transaction to DTC.
DTC proposes to amend the procedures, set forth in the DTC Settlement Service Guide (“Settlement Guide”),
In accordance with the Settlement Guide, for a Matching Utility to establish and maintain a connection with DTC the Matching Utility must be able to balance with DTC in an automated way
A transaction submitted to DTC for processing may be subject to a processing exception (“Exception”), causing it to pend in the DTC system or not be processed because the transaction does not satisfy certain requirements and/or controls set forth in the Rules and Settlement Guide. A Matching Utility that has submitted an Institutional Transaction to DTC, or is otherwise involved with the matching of a transaction, does not receive Status Information regarding the transaction and is therefore unable to provide services to facilitate resolution of processing Exceptions occurring at DTC. Therefore, in order to resolve an Exception, the Participants to an Institutional Transaction currently must (i) access Status Information directly through the DTC Settlement User Interface and (ii), as necessary, supply the information to their customers that are counterparties to the transaction on their books, in order to facilitate the coordination of the resolution of the Exception among the counterparties. DTC states that currently, these communications among the counterparties to a transaction often occur in a decentralized manner via email, which is time consuming and subject to error.
DTC received a request from its Matching Utility affiliate, ITP Matching (US) LLC (“ITP”), to receive Status Information so that ITP may transmit the Status Information to counterparties in a centralized format. DTC believes that distribution of Status Information to relevant counterparties in a centralized format would facilitate Participants' ability to monitor Exceptions and coordinate with their institutional customers in order to resolve Exceptions.
Pursuant to the proposed rule change, in order to facilitate more seamless transmission of the Status Information to Participants and facilitate their ability to manage Exceptions for (i) Affirmed Transactions and (ii) other Institutional Transactions that may have been confirmed at a Matching Utility and received a Control Number and are submitted directly to DTC by a Participant in an instruction containing the Control Number (collectively, “Eligible Transactions”), DTC proposes to amend the Settlement Guide to provide that DTC may provide Status Information on Eligible Transactions to the applicable Matching Utility that submitted the transaction to DTC or with respect to which its Control Number is included in transaction details provided by a Participant,
In this regard, DTC would send to a Matching Utility Status Information for Eligible Transactions that DTC has received from the Matching Utility or have been entered by the Participant that have a Control Number associated with that Matching Utility. The Status Information provided to the Matching Utility would include the status of the transaction (
Pursuant to the proposed rule change, DTC proposes to revise the Settlement Guide to allow DTC to provide Status Information of Eligible Transactions to a Matching Utility that requests such information, but only for those transactions that are associated with a Control Number relating to the Matching Utility. The proposed text to the Settlement Guide would also (i) describe the types of Status Information and related Identifying Information that would be shared with a Matching Utility in this regard, and (ii) provide that DTC may charge a fee (“Status Information Fee”) to a Matching Utility that receives Status Information as set forth in the DTC Fee Guide.
The Proposed Rule Change would require that prior to providing Status Information to a Matching Utility, DTC would obtain the written agreement, in such form as determined by DTC from time to time (“Status Information Agreement”), from the Matching Utility that includes the following:
(i) A request from the Matching Utility to receive Status Information from DTC;
(ii) an agreement by the Matching Utility that the Matching Utility will not distribute Status Information to any third party other than (a) the Participants indicated on the Status Information and (b) the institutional customers that are counterparties to the transaction for which the Participants indicated on the Status Information are acting with respect to the transaction;
(iii) the agreement of the Matching Utility that the Matching Utility will indemnify, hold harmless and agree, on demand, to reimburse DTC, its stockholders, officers, directors and employees from and against and for any and all claims, liabilities, obligations, damages, actions, penalties, losses, costs, expenses and disbursements, including, without limitation, attorneys' fees and disbursements (“Claims”), which they may sustain by reason of DTC's providing Status Information to the Matching Utility, except for any Claims which result from the gross negligence or willful misconduct of the person asserting a right to indemnification;
(iv) the agreement of the Matching Utility to pay the Status Information Fee;
(v) the agreement of the Matching Utility to notify DTC immediately if the Matching Utility becomes aware of Status Information provided to it by DTC being distributed to a third party other than as authorized pursuant to (ii) above; and
(vi) the acknowledgement of the Matching Utility that DTC may terminate the Status Information Agreement in the event that (a) DTC becomes aware that the Matching Utility has used or distributed the Status Information in a manner that violates the terms of the Status Information Agreement, (b) the Matching Utility does not pay the Status Information Fee in accordance with the terms of the Fee Schedule, or (c) DTC submits a rule filing to the SEC, which is approved by the SEC or otherwise becomes effective pursuant to the Act, to discontinue DTC's distribution of Status Information to Matching Utilities.
In Amendment No. 1, DTC proposes to provide status information to a Matching Utility even if that Matching Utility did not submit a transaction to DTC.
In Amendment No. 2, DTC proposes to delay the implementation timeframe of the proposal to until DTC has submitted a subsequent fee filing.
Interested persons are invited to submit written data, views and arguments concerning whether Amendment Nos. 1 and 2 are 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.
Section 19(b)(2)(C) of the Act
Section 17A(b)(3)(F) of the Act requires, in part, that the rules of a clearing agency be designed to, among other things, promote the prompt and accurate clearance and settlement of securities transactions.
As described above, DTC proposes to share Status Information with Matching Utilities. Matching Utilities already electronically facilitate communication among the parties to an Institutional Transaction. Providing Status Information to Matching Utilities would leverage their existing communication platform to eliminate the need for Participants to access the Status Information directly from DTC and then communicate Exception information to other parties in a decentralized way, including by sending emails which are less efficient and more error-prone. The Commission believes that this approach should increase efficiency in communicating Status Information that in turn could help facilitate enhanced communication among the parties to an Eligible Transaction to address an Exception so that the Eligible Transaction may meet DTC controls and be processed for end-of-day settlement. As such, the Commission believes that the Proposed Rule Change is designed to promote the prompt and accurate clearance and settlement of securities transactions and is consistent with Section 17A(b)(3)(F) of the Act.
Section 17A(b)(3)(I) of the Act requires that the rules of a clearing agency not impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act.
As originally proposed, the Proposed Rule Change would provide Status Information to the Matching Utility that submitted the transaction to DTC or with respect to which its Control Number is included in transaction details provided by a Participant. Further, a Matching Utility would be required to sign an agreement that the Matching Utility will not distribute Status Information to any third party other than (a) the Participants indicated on the Status Information and (b) the institutional customers that are counterparties to the transaction for which the Participants indicated on the Status Information are acting with respect to the transaction. One commenter opposes the original proposal limiting access to the Status Information only to Matching Utilities that either submitted the transaction to DTC or whose Control Number is included in the transaction detailed provided to DTC by a Participant, because this original proposal does not provide for transmitting Status Information to a linked Matching Utility, over the interface or otherwise.
In response, DTC states that it does not intend for the Proposed Rule Change to preclude sharing of Status Information among interoperating Matching Utilities in a circumstance where both Matching Utilities are acting for a party to the transaction.
The Commission believes that the proposed rule change, as amended, would not impose any burden on competition on the future development of an interoperability arrangement among Matching Utilities not necessary or appropriate in furtherance of the purposes of the Act. The Proposed Rule Change would allow any Matching Utilities involved in a transaction to access Status Information directly from DTC, regardless of whether a Matching Utility's control number was submitted with the transaction. The Commission understands that under the Proposed Rule Change, the method by which a Matching Utility accesses Status Information would differ based on whether the Matching Utility's control number is associated with the transaction (
As discussed above, the Proposed Rule Change would authorize DTC to charge (i) a Status Information Fee to a Matching Utility that receives Status Information as set forth in the DTC Fee Guide through a future proposed rule change and (ii) the reasonable cost to cover for the development of the mechanism by DTC to provide Status Information to a Matching Utility even if that Matching Utility did not submit a transaction to DTC.
One commenter opposes the proposal to charge a fee for Status Information on both procedural and substantive grounds.
For the following reasons, the Commission believes that the Proposed Rule Change would not impose any burden on competition regarding fees that is not necessary or appropriate in furtherance of the purposes of the Act. As a procedural matter, not including the fee for Status Information in the Proposed Rule Change is consistent with the Act. Sections 19(b)(3)(A) and (C) of the Act
Substantively, it is consistent with the Act to charge fees to both affiliates and third-party competitors of the affiliate. The commenter argues that the mere existence of a fee is problematic because DTC would be charging that fee to its affiliate which renders the fee a “paper transfer” of revenue.
Finally, the Commission notes that the Proposed Rule Change would also provide that a Matching Utility agree to pay DTC for the reasonable cost of DTC's development of the mechanism necessary for DTC to directly provide Status Information to a Matching Utility for each transaction to which a customer of the Matching Utility is a party and matched via the Matching Utility. As noted above, the Commission notes that this approach, which applies to all Matching Utilities, is consistent with Section 17A(b)(3)(D),
Therefore, for all of the above reasons, the Commission believes that the Proposed Rule Change is consistent with Section 17A(b)(3)(I) of the Act.
As noted above, in Amendment No. 1, as compared to the original proposal, DTC proposes to provide status information to a Matching Utility even if that matching utility did not submit a transaction to DTC.
As discussed above, the Commission believes that the amendments do not raise any regulatory issues and are consistent with the Act because Amendment No. 1 provides different methods for Matching Utilities to access Status Information directly from DTC to help ensure that Matching Utilities can access Status Information regardless of which Matching Utility submits the transaction to DTC. Likewise, Amendment No. 2 would provide more time before the proposal would go into effect.
Therefore, the Commission finds that Amendment Nos. 1 and 2 to the proposal raise no novel regulatory issues, that they are reasonably designed to protect investors and the public interest, and that they are consistent with the requirements of the Act. Accordingly, the Commission finds good cause, pursuant to Section 19(b)(2) of the Act,
On the basis of the foregoing, the Commission finds that the proposed rule change, as modified by Amendment Nos. 1 and 2, is consistent with the requirements of the Act, in particular, with the requirements of Section 17A of the Act and the rules and regulations thereunder.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Section 31(a)(1) of the Investment Company Act of 1940 (15 U.S.C. 80a-1
The retention of records, as required by the rule, is necessary to ensure access to material business and financial information about funds and certain related entities. We periodically inspect the operations of funds to ensure they are in compliance with the Act and regulations under the Act. Due to the limits on our resources, however, each fund may only be inspected at intervals of several years. In addition, the prosecution of persons who have engaged in certain violations of the federal securities laws may not be limited by timing restrictions. For these reasons, we often need information relating to events or transactions that occurred years ago. Without the requirement to preserve books, records, and other documents, our staff would have difficulty determining whether the fund was in compliance with the law in such areas as valuation of its portfolio securities, computation of the prices investors paid, and, when purchasing and selling fund shares, types and amounts of expenses the fund incurred, kinds of investments the fund purchased, actions of affiliated persons, or whether the fund had engaged in any illegal or fraudulent activities. As part of our examinations of funds, our staff also reviews the materials that directors consider in approving the advisory contract.
There are 3,160 funds currently operating as of December 31, 2018, all of which are required to comply with rule 31a-2. The Commission staff estimates that, on average, a fund spends 220.4 hours annually to comply with the rule. The Commission therefore estimates the total annual hour burden of the rule's and form's paperwork requirements to be 696,464 hours. In addition to the burden hours, the Commission staff estimates that the average yearly cost to each fund that is subject to rule 31a-2 is about $36,510.28. The Commission estimates total annual cost is therefore about $115.4 million.
Estimates of average burden hours and costs are made solely for purposes of the Paperwork Reduction Act and are not derived from a comprehensive or even representative survey or study of the costs of Commission rules and forms. Compliance with the collection of information requirements of the rule is mandatory. Responses to the disclosure requirements will not be kept confidential. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
Written comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information has practical utility; (b) the accuracy of the Commission's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Charles Riddle, Acting Director and Chief Information Officer, Securities and Exchange Commission, c/o Candace Kenner, 100 F Street NE, Washington, DC 20549; or send an email to:
All submissions should refer to File Number 270-174. This file number should be included on the subject line if email is used. The Commission will post all comments on the Commission's internet website (
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 17a-3 under the Securities Exchange Act of 1934 establishes minimum standards with respect to business records that broker-dealers registered with the Commission must make and keep current. These records are maintained by the broker-dealer (in accordance with a separate rule), so they can be used by the broker-dealer and reviewed by Commission examiners, as well as other regulatory authority examiners, during inspections of the broker-dealer.
The collections of information included in Rule 17a-3 are necessary to provide Commission, self-regulatory organization (“SRO”) and state examiners to conduct effective and efficient examinations to determine whether broker-dealers are complying with relevant laws, rules, and regulations. If broker-dealers were not required to create these baseline, standardized records, Commission, SRO and state examiners could be unable to determine whether broker-dealers are in compliance with the Commission's antifraud and anti-manipulation rules, financial responsibility program, and other Commission, SRO, and State laws, rules, and regulations.
As of December 31, 2018 there were 3,764 broker-dealers registered with the Commission. The Commission estimates that these broker-dealer respondents incur a total burden of 2,893,773 hours per year to comply with Rule 17a-3.
In addition, Rule 17a-3 contains ongoing operation and maintenance costs for broker-dealers, including the cost of postage to provide customers
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; (b) the accuracy of the Commission's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information under the PRA unless it displays a currently valid OMB control number.
Please direct your written comments to: Charles Riddle, Acting Director/Chief Information Officer, Securities and Exchange Commission, c/o Candace Kenner, 100 F Street NE, Washington, DC 20549, or send an email to:
Notice is hereby given that, pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), the Securities and Exchange Commission (the “Commission”) is soliciting comments on the collection of information summarized below. The Commission plans to submit this existing collection of information to the Office of Management and Budget (“OMB”) for extension and approval.
In Canada, as in the United States, individuals can invest a portion of their earnings in tax-deferred retirement savings accounts (“Canadian retirement accounts”). These accounts, which operate in a manner similar to individual retirement accounts in the United States, encourage retirement savings by permitting savings on a tax-deferred basis. Individuals who establish Canadian retirement accounts while living and working in Canada and who later move to the United States (“Canadian-U.S. Participants” or “participants”) often continue to hold their retirement assets in their Canadian retirement accounts rather than prematurely withdrawing (or “cashing out”) those assets, which would result in immediate taxation in Canada.
Once in the United States, however, these participants historically have been unable to manage their Canadian retirement account investments. Most securities that are “qualified investments” for Canadian retirement accounts are not registered under the U.S. securities laws. Those securities, therefore, generally cannot be publicly offered and sold in the United States without violating the registration requirement of the Securities Act of 1933 (“Securities Act”).
The Commission issued a rulemaking in 2000 that enabled Canadian-U.S. Participants to manage the assets in their Canadian retirement accounts by providing relief from the U.S. registration requirements for offers of securities of foreign issuers to Canadian-U.S. Participants and sales to Canadian retirement accounts.
Rule 237 requires written offering documents for securities offered and sold in reliance on the rule to disclose prominently that the securities are not registered with the Commission and are exempt from registration under the U.S. securities laws. The burden under the rule associated with adding this disclosure to written offering documents is minimal and is non-recurring. The foreign issuer, underwriter, or broker-dealer can redraft an existing prospectus or other written offering material to add this disclosure statement, or may draft a sticker or supplement containing this disclosure to be added to existing offering materials. In either case, based on discussions with representatives of the Canadian fund industry, the staff estimates that it would take an average of 10 minutes per document to draft the requisite disclosure statement.
The Commission understands that there are approximately 2,412 Canadian issuers other than funds that may rely on rule 237 to make an initial public offering of their securities to Canadian-U.S. Participants.
The staff therefore estimates that during each year that rule 237 is in effect, approximately 24 respondents
In addition, issuers from foreign countries other than Canada could rely on rule 237 to offer securities to Canadian-U.S. Participants and sell securities to their accounts without becoming subject to the registration requirements of the Securities Act. However, the staff believes that the number of issuers from other countries that rely on rule 237, and that therefore are required to comply with the offering document disclosure requirements, is negligible.
These burden hour estimates are based upon the Commission staff's experience and discussions with the fund industry. The estimates of average burden hours are made solely for the purposes of the Paperwork Reduction Act. These estimates are not derived from a comprehensive or even a representative survey or study of the costs of Commission rules.
Compliance with the collection of information requirements of the rule is mandatory and is necessary to comply with the requirements of the rule in general. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid control number.
Please direct your written comments to Charles Riddle, Acting Director/Chief Information Officer, Securities and Exchange Commission, C/O Candace Kenner, 100 F Street NE, Washington, DC 20549; or send an email to:
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”),
Cboe Exchange, Inc. (the “Exchange” or “Cboe Options”) proposes to amend its Fees Schedule. The text of the proposed rule change is provided in Exhibit 5.
The text of the proposed rule change is also available on the Exchange's website (
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange proposes to amend its fees schedule to (i) amend the Cboe Options Clearing Trading Permit Holder Proprietary Products Sliding Scales Program (Proprietary Product Sliding Scales”) and (ii) amend the Marketing Fee program, effective August 1, 2019.
The Proprietary Products Sliding Scales table provides that Clearing Trading Permit Holder Proprietary transaction fees for Clearing Trading Permit Holders (origin code “F”) and for Non-Clearing Trading Permit Holder Affiliates (“Non-TPH Affiliates”) (origin code “L”) (collectively, Clearing TPHs”) in Underlying Symbol List A
In order to simplify and streamline the Proprietary Sliding Scales program, the Exchange proposes to make the Firm Sliding Scale and VIX Sliding Scales separate and independent programs. That is, the Exchange proposes to no longer assess the lesser amount of the transaction fees calculated using only the Firm Sliding Scale as applied to all Underlying Symbol List A products or (b) the Firm Sliding Scale as applied to all Underlying Symbol List A except VIX, plus the discounted transaction fees as calculated under the VIX Sliding Scale. Rather, all Underlying Symbol List A options, excluding VIX, will be subject to the “Cboe Options Clearing Trading Permit Holder Proprietary Products Sliding Scale” (formerly Table A) and all VIX volume will always be subject to the “Cboe Options Clearing Trading Permit Holder VIX Sliding Scale” (formerly Table B). The current methodology was originally adopted to provide a Clearing TPH with the most beneficial fee arrangement (the lowest fees) without double-counting VIX options volume. The Exchange notes however, the more beneficial fee arrangement for Clearing TPHs has historically and consistently been to apply the rates under the Firm Sliding Scale to all Underlying Symbol List A products excluding VIX and apply the rates under the VIX Sliding Scale to all VIX volume (which provides for the same end result as is being proposed by separating the program). For example, this result has been true for all Clearing TPHs to date this year 2019. As such, the Exchange believes the proposal to separate the sliding scale programs does not significantly or substantively impact Clearing TPHs.
The Exchange next proposes to amend its Marketing Fee program. By way of background the Marketing Fee is assessed on certain transactions of Market-Makers resulting from (i) customer orders from payment accepting firms, or (ii) customer orders that have designated a DPM under Cboe Options Rule 8.80, a “Preferred Market‐Maker” under Cboe Options Rule 8.13 or a “Lead Market-Maker” under Cboe Options Rule 8.15 (collectively “Preferenced Market‐Maker”). The funds collected via this Marketing Fee are then put into pools controlled by the Preferenced Market-Maker. The Preferenced Market-Maker controlling a certain pool of funds can then determine the order flow provider(s) to which the funds should be directed in order to encourage such order flow provider(s) to send orders to the Exchange.
The Exchange proposes to simplify and amend the Marketing Fee program to provide that the Marketing Fee will be assessed on all transactions of Market-Makers resulting from any Customer order (instead of only Customer orders from (i) payment accepting firms or (ii) that have designated a Preferenced Market-Maker). The Exchange notes that currently, order flow providers are given the option of “opting in” to the Marketing Fee Program to be eligible to receive marketing fees (
The Exchange believes that the proposed rule change is consistent with the objectives of Section 6 of the Act, in general, and furthers the objectives of Section 6(b)(4), in particular, as it is designed to provide for the equitable allocation of reasonable dues, fees and other charges among its Members and issuers and other persons using its facilities. The Exchange also believes that the proposed rule change is consistent with the objectives of Section 6(b)(5) requirements that the rules of an exchange be designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing, settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general, to protect investors and the public interest, and, particularly, is not designed to permit unfair discrimination between customers, issuers, brokers, or dealers.
The Exchange believes that it is reasonable and equitable to separate the Proprietary Sliding Scales Program (
The Exchange also believes that notwithstanding the proposed rule change, the Firm Sliding Scale and VIX Sliding Scale will continue to incentivize option volume. Additionally, the Exchange notes that lower fees for executing more contracts is equitable and not unfairly discriminatory because it provides market participants with an incentive to execute more contracts on the Exchange. This brings greater liquidity and trading opportunity, which benefits all market participants. The Exchange believes that the proposed change is not unfairly discriminatory because it will apply to all Clearing TPHs uniformly. The Exchange also believes offering lower fees under the Proprietary Sliding Scale to Clearing TPHs and not other market participants is equitable and not unfairly discriminatory because Clearing TPHs must take on certain obligations and responsibilities, such as clearing and membership with the Options Clearing Corporation, as well as significant regulatory burdens and financial obligations, that other market participants are not required to undertake.
The Exchange believes the proposed rule change to apply the Marketing Fee to all Market-Maker transactions that result from Customer orders (instead of Customer orders that are from payment accepting firms or designate a Preferenced Market-Maker) is reasonable because the Marketing Fee amount is not changing. Rather, the proposed rule change results in the Marketing Fee being applied uniformly on all Market-Maker transactions where the counterparty is a Customer. As discussed above, the Exchange believes the proposed change will not have a significant impact, as the vast majority of Market-Maker-to-Customer transactions are already subject to the Marketing Fee as (i) only a few order flow providers are not already payment accepting firms and (ii) the majority of orders designate a Preferenced Market-Maker. The Exchange also note that the Marketing Fee program is designed to attract additional order flow to the Exchange, which would increase liquidity and benefit all market participants. Lastly, the proposed rule change enables a more streamlined administration of the Marketing Fee program and is in line with how other exchanges, including the Exchange's affiliate, administer their respective Marking Fee programs.
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. Specifically, the Exchange does not believe that the proposed change will impose any burden on intramarket competitions that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed change to the Proprietary Sliding Scales program and Marketing Fee Program, will be applied equally to Clearing TPHs and Market-Makers, respectively.
The Exchange does not believe that the proposed rule change will impose any burden on intermarket competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed change relating to the Proprietary Sliding Scales program only affects Exchange proprietary products, which are traded exclusively on the Exchange. Additionally, the proposed change to the Marketing Fee program, mirrors how other exchanges, including Cboe EDGX, apply their respective marketing fees. The Exchange notes that neither proposed rule change it intended as a competitive pricing change, but rather as a change to streamline and simplify both programs.
The Exchange neither solicited nor received comments on the proposed rule change.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Section 17(a) of the Investment Company Act of 1940 (15 U.S.C. 80a-1
To qualify for the exemptions in rule 17a-10, the subadvisory relationship must be the sole reason why section 17(a) prohibits the transaction. In addition, the advisory contracts of the subadviser entering into the transaction, and any subadviser that is advising the purchasing portion of the fund, must prohibit the subadvisers from consulting with each other concerning securities transactions of the fund, and limit their responsibility to providing advice with respect to discrete portions of the fund's portfolio.
The staff assumes that all existing funds with subadvisory contracts amended those contracts to comply with the adoption of rule 17a-10 in 2003, which conditioned certain exemptions upon these contractual alterations, and therefore there is no continuing burden for those funds.
Based on an analysis of fund filings, the staff estimates that approximately 221 funds enter into new subadvisory agreements each year.
The estimate of average burden hours is made solely for the purposes of the PRA. The estimate is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. Complying with this collection of information requirement is necessary to obtain the benefit of relying on rule 17a-10. Responses will not be kept confidential. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Written comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Charles Riddle, Acting Director/Chief Information Officer, Securities and Exchange Commission, C/O Candace Kenner, 100 F Street NE, Washington, DC 20549; or send an email to:
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of CALIFORNIA dated 08/07/2019.
Issued on 08/07/2019.
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, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 16074 2 and for economic injury is 16075 0.
The States which received an EIDL Declaration # are California, Arizona, Nevada.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the State of Louisiana dated 08/08/2019.
Issued on 08/08/2019.
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, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 16076 C and for economic injury is 16077 0.
The State which received an EIDL Declaration # is Louisiana.
U.S. Small Business Administration.
Amendment 5.
This is an amendment of the Presidential declaration of a major disaster for Public Assistance Only for the State of Nebraska (FEMA-4420-DR), dated 04/05/2019.
Issued on 04/05/2019.
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, (202) 205-6734.
The notice of the President's major disaster declaration for Private Non-Profit organizations in the State of NEBRASKA, dated 04/05/2019, is hereby amended to establish the incident period for this disaster as beginning 03/09/2019 through 07/14/2019.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Amendment 6.
This is an amendment of the Presidential declaration of a major disaster for the State of Nebraska (FEMA-4420-DR), dated 03/21/2019.
Issued on 03/21/2019.
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, (202) 205-6734.
The notice of the President's major disaster declaration for the State of NEBRASKA, dated 03/21/2019, is hereby amended to establish the incident period for this disaster as beginning 03/09/2019 through 07/14/2019.
All other information in the original declaration remains unchanged.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the Commonwealth of Pennsylvania dated 08/07/2019.
Issued on 08/07/2019.
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, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 16072 6 and for economic injury is 16073 0.
The State which received an EIDL Declaration # is Pennsylvania.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the Muscogee (Creek) Nation located in the State of Oklahoma (FEMA-4456-DR), dated 08/07/2019.
Issued on 08/07/2019.
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, (202) 205-6734.
Notice is hereby given that as a result of the President's major disaster declaration on 08/07/2019, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 16080B and for economic injury is 160810.
U.S. Small Business Administration.
Notice.
This is a notice of an Administrative declaration of a disaster for the Commonwealth of Virginia dated 08/07/2019.
Issued on 08/07/2019.
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, (202) 205-6734.
Notice is hereby given that as a result of the Administrator's disaster declaration, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 160706 and for economic injury is 160710.
The States which received an EIDL Declaration # are Virginia, District of Columbia, Maryland.
U.S. Small Business Administration.
Amendment 2.
This is an amendment of the Presidential declaration of a major disaster for the State of Missouri (FEMA-4451-DR), dated 07/09/2019.
Issued on 08/05/2019.
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, (202) 205-6734.
The notice of the President's major disaster declaration for the State of Missouri, dated 07/09/2019, is hereby amended to include the following areas as adversely affected by the disaster:
All other information in the original declaration remains unchanged.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104-13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes one new, one extension, and revisions of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
Or you may submit your comments online through
I. The information collection below is pending at SSA. SSA will submit it to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than October 15, 2019. Individuals can obtain copies of the collection instruments by writing to the above email address.
II. SSA submitted the information collections below to OMB for clearance. Your comments regarding these information collections would be most useful if OMB and SSA receive them 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than September 12, 2019. Individuals can obtain copies of the OMB clearance packages by writing to
Notice is hereby given of the following determinations: I hereby determine that certain objects to be included in the exhibition “Lari Pittman: Declaration of Independence,” imported from abroad for temporary exhibition within the United States, are of cultural significance. The objects are imported pursuant to a loan agreement with the foreign owner or custodian. I also determine that the exhibition or display of the exhibit objects at the Hammer Museum, Los Angeles, California, from on or about September 29, 2019, until on or about January 5, 2020, and at possible additional exhibitions or venues yet to be determined, is in the national interest. I have ordered that Public Notice of these determinations be published in the
Chi Tran, Paralegal Specialist, Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
The foregoing determinations were made pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), Executive Order 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
By virtue of the authority vested in the Secretary of State, including section 1 of the State Department Basic Authorities Act, as amended (22 U.S.C. 2651a), and to the extent authorized by law, I hereby delegate to the Under Secretary for Arms Control and International Security the authority to concur with decisions by the Secretary of Energy to enter into agreements relating to contributions for certain Department of Energy nonproliferation programs, as described in 50 U.S.C. 2569(f).
The Secretary or the Deputy Secretary may at any time exercise any authority or function delegated by this delegation of authority. Any act, authority, or procedure subject to, or affected by, this delegation shall be deemed to be such act, authority, or procedure as amended from time to time.
This delegation of authority shall be published in the
Federal Aviation Administration (FAA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FAA invites public comments about our intention to request the Office of Management and Budget (OMB) approval to renew an information collection. The collection involves information applicants must provide on an application for an FAA medical certificate. The information to be collected will be used to evaluate an applicant's medical fitness.
Written comments should be submitted by October 15, 2019.
Please send written comments:
Judi Citrenbaum by email at:
Federal Motor Carrier Safety Administration (FMCSA), U.S. Department of Transportation (DOT).
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995, FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for its review and approval and invites public comment. FMCSA requests approval to extend an existing ICR titled, “Transportation of Hazardous Materials, Highway Routing.” The information reported by States and Indian tribes is necessary to identify designated/restricted routes and restrictions or limitations affecting how motor carriers may transport certain hazardous materials on their highways, including dates that such routes were established and information on subsequent changes or new hazardous materials routing designations.
We must receive your comments on or before October 11, 2019.
You may submit comments identified by Federal Docket Management System (FDMS) Docket Number FMCSA-2019-0140 using any of the following methods:
•
•
•
•
Ms. Suzanne Rach, Office of Enforcement and Compliance, Hazardous Materials Division, FMCSA, West Building 6th Floor, 1200 New Jersey Avenue SE, Washington, DC 20590. Telephone: 202-385-2307; email
In 49 CFR 397.73, FMCSA requires that each State and Indian tribe, through its routing agency, provide information identifying new, or changes to existing, hazardous materials routing designations within its jurisdiction within 60 days after their establishment (or 60 days of the change). That information is collected and consolidated by FMCSA and published annually, in whole or as updates, in the
Issued under the authority of 49 CFR 1.87 on:
Under part 211 of title 49 Code of Federal Regulations (CFR), this document provides the public notice that on June 6, 2019, the Association of American Railroads (AAR) petitioned the Federal Railroad Administration (FRA) for a special approval of certain industry standards in accordance with the Federal railroad safety regulations contained at 49 CFR 231.33,
AAR, on behalf of itself and its member railroads, submitted a petition for special approval of existing industry safety appliance standards contained in 49 CFR part 231, and minor edits to AAR Standard S-2044 and its appendices that have been previously approved by FRA. Specifically, AAR requests approval of the standards and specifications delineated in AAR Standard S-2044, Appendices E3, Safety Appliances for Tank Cars with Side Ladders and Low Side-Mounted Hand Brakes, and E4, Safety Appliances for Tank Cars with End Ladders and Low Side-Mounted Handbrakes. Appendices E3 and E4 were not included in the version of AAR Standard S-2044 approved September 26, 2018, and are entirely new. Additionally, AAR seeks approval of minor edits to previously-approved S-2044 and its appendices, as shown in Attachment 2 to the petition. AAR S-2044 and its appendices have been developed to serve as requirements for safety appliance arrangements. The revised standard and its appendices are to be applied to new railroad freight cars, if approved by FRA.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing about these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
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•
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Communications received by September 27, 2019, will be considered by FRA before final action is taken. Comments received after that date will be considered if practicable.
Anyone can search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an
Issued in Washington, DC.
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Grant of petition.
Michelin North America, Inc. (MNA) has determined that certain Michelin XZL brand tires do not fully comply with Federal Motor Vehicle Safety Standard (FMVSS) No. 119,
Abraham Diaz, Office of Vehicle Safety Compliance, NHTSA, telephone (202) 366-5310, facsimile (202) 366-3081.
MNA has determined that certain Michelin brand tires do not fully comply with paragraph S6.4 of Federal Motor Vehicle Safety Standard (FMVSS) No. 119,
Notice of receipt of MNA's petition was published with a 30-day public comment period, on December 6, 2018, in the
Approximately 752 Michelin XZL size 16.00R20 tires manufactured between January 19, 2018, and April 9, 2018, are potentially involved.
MNA explains that the noncompliance was due to a mold error which left the subject tires with fewer than the required number of treadwear indicators specified in paragraph S6.4 of FMVSS No. 119. Specifically, the tires were manufactured with 4 rows of treadwear indicators instead of the required minimum of 6 treadwear indicators.
Paragraph S6.4 of FMVSS No. 119, includes the requirements relevant to this petition:
• Each tire shall have at least six treadwear indicators spaced approximately equally around the circumference of the tire that enable a person inspecting the tire to determine visually whether the tire has worn to a tread depth of 1.6 mm (one-sixteenth of an inch). Tires with a rim diameter code of 12 or smaller shall have at least three such treadwear indicators. Motorcycle tires shall have at least three such indicators which permit visual determination that the tire has worn to a tread depth of 0.8 mm (one-thirty-second of an inch).
MNA described the subject noncompliance and stated its belief that the noncompliance is inconsequential as it relates to motor vehicle safety.
In support of its petition, MNA submitted the following arguments:
1.
In addition, MNA tires have a molded “Bib” symbol on the tread shoulder to indicate the location of the treadwear indicator. These molded symbols aid the person inspecting the tire to visually locate the treadwear indicator and determine if the tire has worn to the extent that the tread depth is 1.6 mm (1/16 in) or less.
2.
On August 19, 2014, NHTSA issued a Grant of Petition to Cooper Tire and Rubber Company with the following comments:
In the Cooper decision, it is relevant to note:
(a) While the Cooper Mickey Thompson Baja MTZ tires had only one missing treadwear indicator, the maximum circumferential space between the two most distant treadwear indicators was 120 degrees. NHTSA determined that this confirmation of treadwear indicators does not significantly affect a person's ability to inspect a tire. In MNA's case, the maximum circumferential space between the two most distant treadwear indicators is less, at 90 degrees.
(b) The Cooper petition cites a Grant of Petition issued to Motor Bikes Imports, Inc. in 1987 which included a 49 CFR 571.119 S6.4 noncompliance related to motor bike tires with only l treadwear indicator. NHTSA's decision stated a “relatively small number of tires which remain in use nevertheless bear one treadwear indicator” concluding the existence of only a single treadwear indicator combined with the relatively low volume of tires in the market were inconsequential as they relate to motor vehicle safety.
3.
MNA concluded by expressing the belief that the subject noncompliance is inconsequential as it relates to motor vehicle safety, and that its petition to be exempted from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, should be granted.
NHTSA has evaluated the merits of MNA's inconsequential noncompliance petition and has determined that this particular noncompliance is inconsequential to motor vehicle safety. The agency believes that the purpose of the treadwear indicators is to serve as a means for a person to visually inspect and determine if a tire has worn to the extent of the tread depth, which is 1.6 mm (one-sixteenth of an inch) or less.
After review of the petition, NHTSA agrees with the petition that this noncompliance will have no significant impact on the safety of the vehicles on which the subject tires are mounted. The subject tires have four indicators spaced at 90 degrees around the circumference of the tread pattern of the tire. The absence of two indicators does not significantly affect the end user's ability to visually inspect a tire and recognize when the tire's tread has been worn to the point that it needs to be replaced.
In consideration of the foregoing, NHTSA has decided that MNA has met its burden of persuasion that the FMVSS No. 119 noncompliance is inconsequential to motor vehicle safety. Accordingly, MNA's petition is hereby granted and MNA is exempted from the obligation of providing notification of, and a remedy for, that noncompliance under 49 U.S.C. 30118 and 30120.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allows NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, this decision only applies to the subject tires that MNA no longer controlled at the time it determined that the noncompliance existed. However, the granting of this petition does not relieve equipment distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant tires under their control after MNA notified them that the subject noncompliance existed.
(49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice, and extension of comment period.
PHMSA is extending the period for comments on the State of North Dakota and the State of Montana's application for an administrative determination as to whether Federal hazardous material transportation law preempts the State of Washington's rules relating to the volatility of crude oil received in the state.
Comments received on or before September 23, 2019, and rebuttal comments received on or before October 23, 2019, will be considered before an administrative determination is issued by PHMSA's Chief Counsel. Rebuttal comments may discuss only those issues raised by comments received during the initial comment period and may not discuss new issues.
All documents in this proceeding, including North Dakota and Montana's application and all comments received, may be reviewed in the Docket Operations Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590. All documents in this proceeding are also available on the U.S. Government
Comments must refer to Docket No. PHMSA-2019-0149 and may be submitted by any of the following methods:
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A copy of each comment must also be sent to (1) Wayne Stenehjem, Attorney General, The State of North Dakota, Office of the Attorney General, 600 East Boulevard Avenue, Department 125, Bismarck, ND 58505-0040, and (2) Tim Fox, Attorney General, The State of Montana, Office of the Attorney General, Justice Building, Third Floor, 215 North Sanders, Helena, MT 59620-1401. A certification that a copy has been sent to these persons must also be included with the comment. (The following format is suggested: I certify that copies of this comment have been sent to Mr. Stenehjem and Mr. Fox at the addresses specified in the
Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing a comment submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
A subject matter index of hazardous materials preemption cases, including a listing of all inconsistency rulings and preemption determinations, is available through PHMSA's home page at
Vincent Lopez, Office of Chief Counsel, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590; Telephone No. 202-366-4400; Facsimile No. 202-366-7041.
The State of North Dakota and the State of Montana have applied to PHMSA for a determination whether Federal hazardous material transportation law, 49 U.S.C. 5101
PHMSA published a notice of the State of North Dakota and the State of Montana's application in the
After review of the State of Washington's request, we have granted its request.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; notification of issuance of Letter of Authorization.
NMFS, upon request from the U.S. Navy (Navy) issues these regulations pursuant to the Marine Mammal Protection Act (MMPA) to govern the taking of marine mammals incidental to the use of Surveillance Towed Array Sensor System Low Frequency Active (SURTASS LFA) sonar systems onboard U.S. Navy surveillance ships for training and testing activities conducted under the authority of the Secretary of the Navy in the western and central North Pacific Ocean and eastern Indian Ocean (SURTASS LFA sonar activities) beginning August 2019. These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during the described activities and timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, and establish requirements pertaining to the monitoring and reporting of such taking.
Effective on August 12, 2019, through August 11, 2026.
A copy of the Navy's application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
Wendy Piniak, Office of Protected Resources, NMFS, (301) 427-8401.
These regulations, issued under the authority of the MMPA (16 U.S.C. 1361
NMFS received an application from the Navy requesting regulations and an associated letter of authorization (LOA) to take individuals of multiple species and stocks of marine mammals (“Navy's rulemaking/LOA application” or “Navy's application”) by Level B harassment incidental to SURTASS LFA sonar activities. Please see “Background” below for definitions of harassment. This final rule establishes a framework under the authority of the MMPA (16 U.S.C. 1361
Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) generally directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to five years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking and other means of effecting the least practicable adverse impact (LPAI) on the affected species or stocks and their habitat, as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing this final rule and any associated LOAs. As described in the
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”), and requirements pertaining to the monitoring and reporting of such takings.
The 2004 NDAA (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations indicated above and amended the definition of “harassment” as it applies to a “military readiness activity” to read as follows (Section 3(18)(B) of the MMPA): (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A Harassment); or (ii) Any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavioral patterns, including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered (Level B Harassment). In addition, the FY 2004 NDAA amended the MMPA as it relates to military readiness activities and the incidental take authorization (ITA) process such that “least practicable adverse impact” shall include consideration of personnel safety, practicality of implementation,
The authorization of incidental taking under section 101(a)(5)(A) requires promulgation of activity-specific regulations following notice and opportunity for public comment. Under NMFS' implementing regulations for section 101(a)(5)(A), a Letter of Authorization (LOA) also is required to conduct activities pursuant to any activity-specific regulations (50 CFR 216.106).
On June 4, 2018, NMFS received a request from the Navy for authorization to take, by Level B harassment, 46 species of marine mammals incidental to the use of SURTASS LFA sonar onboard U.S. Navy surveillance ships for training and testing activities (categorized as military readiness activities) conducted under the authority of the Secretary of the Navy in the western and central North Pacific Ocean and eastern Indian Ocean beginning in August 2019 and extending to August 2026. On July 13, 2018, NMFS published a notice of receipt (NOR) of the Navy's application in the
The Navy states, and NMFS concurs, that these SURTASS LFA sonar activities, classified as military readiness activities, may incidentally take marine mammals by exposing them to SURTASS LFA sonar at levels that constitute Level B harassment as defined above. The Navy requests authorization to take, by Level B Harassment, individuals from 139 stocks of 46 species of marine mammals (10 species of mysticete (baleen) whales, 31 species of odontocete (toothed) whales, and 5 species of pinnipeds (seals and sea lions)). This rule also covers the authorization of take of animals from additional associated stocks of marine mammals not listed here, should one or more of the stocks identified in this rule be formally separated into multiple stocks, provided NMFS is able to confirm the necessary findings for the newly identified stocks. As discussed later in this document, incidental takes due to SURTASS LFA sonar will be limited to Level B harassment. No takes by Level A harassment are authorized, as Level A harassment is considered unlikely and will be avoided through the implementation of the Navy's mitigation measures, as discussed below.
In previous SURTASS LFA sonar rulemakings, NMFS authorized some Level A harassment takes in an abundance of caution even though Level A harassment takes were not anticipated. However, to the knowledge of the Navy and NMFS, no Level A harassment takes have resulted over the 17-year history of SURTASS LFA sonar activities. Additionally, the exposure criteria and thresholds for assessing Level A harassment have been modified since prior rules based on the best available science. Under these new metrics, the zone for potential injury is substantially reduced. Therefore, due to the small injury zones and the fact that mitigation measures would ensure that marine mammals would not be exposed to received levels associated with injury, the Navy has not requested authorization for Level A harassment takes, and NMFS is not authorizing any takes by Level A harassment.
NMFS published the first incidental take rule for SURTASS LFA sonar, effective from August 2002 through August 2007, on July 16, 2002 (67 FR 46712); the second rule, effective from August 2007 through August 2012, on August 21, 2007 (72 FR 46846); and the third rule, effective from August 2012 through August 2017, on August 20, 2012 (77 FR 50290).
In 2016, the Navy submitted an application for a fourth incidental take regulation under the MMPA (DoN, 2016) for the taking of marine mammals by harassment incidental to the deployment of up to four SURTASS LFA sonar systems from August 15, 2017, through August 14, 2022. NMFS published a proposed rule on April 27, 2017 (82 FR 19460). On August 10, 2017, the Deputy Secretary of Defense, after conferring with the Secretary of Commerce, determined that it was necessary for the national defense to exempt all military readiness activities that use SURTASS LFA sonar from compliance with the requirements of the MMPA for a period of up to two years beginning August 13, 2017, through August 12, 2019, or until such time when NMFS issues regulations and an LOA under MMPA section 101(a)(5)(A) for military readiness activities associated with the use of SURTASS LFA sonar, whichever is earlier. During the period of the National Defense Exemption (NDE) (available at
The NDE expires August 12, 2019. For this rulemaking, the Navy will continue to use SURTASS LFA sonar systems onboard United States Naval Ship (USNS) surveillance ships for training and testing activities conducted under the authority of the Secretary of the Navy within the western and central North Pacific Ocean and eastern Indian Ocean. The operating features of the LFA sonar will remain, and have remained the same since the 2001 SURTASS LFA FOEIS/EIS. The typical duty cycle of LFA sonar, based on historical SURTASS LFA sonar use, is 7.5 to 10 percent (DoN, 2007). The maximum duty cycle remains the same at 20 percent.
For this rulemaking, the Navy scoped the geographic extent of the area where the specified activity will occur (Study Area) to better reflect the areas where the Navy anticipates conducting SURTASS LFA sonar training and testing activities. Whereas the previous authorizations included certain routine military operations among the scope of actions analyzed, the Navy also has narrowed the scope of activities in the current request for authorization to training and testing activities only, due to various statutory and practical considerations, as described in Chapter 1 of the 2019 SURTASS LFA FSEIS/SOEIS, and discussed further below.
The Navy will transmit a total of up to 496 LFA sonar transmission hours
Since the proposed rule, based on public comment and additional analysis, NMFS and the Navy have agreed to additional mitigation and monitoring measures that are expected to reduce the likelihood and/or severity of adverse impacts on marine mammal species/stocks and their habitat and are practicable for implementation.
• In the proposed rule we presented 25 marine areas for further consideration as marine mammal Offshore Biologically Important Areas (OBIAs) for SURTASS LFA sonar. After considering public comments and conducting additional analyses, 33 marine areas were assessed as potential OBIAs. Of these 33 marine areas, 17 were determined to qualify as OBIAs. All 17 of the areas were found to be practicable and were designated as 14 OBIAs (some OBIAs encompass several marine areas). All four of the OBIAs previously designated in the SURTASS LFA sonar Study Area have been expanded spatially.
• The Navy will use no more than 25 percent of the authorized amount (transmission hours) of SURTASS LFA sonar for training and testing within 10 nautical miles (nmi) (18.5 kilometers (km)) of any single OBIA during any year (no more than 124 hours in years 1-4 and 148 hours in years 5-7) unless the following conditions are met: Should national security present a requirement to conduct more than 25 percent of authorized hours of SURTASS LFA sonar within 10 nmi (18.5 km) of any single OBIA during any year, naval units will obtain permission from the appropriate designated Command authority prior to commencement of the activity. The Navy will provide NMFS with notification as soon as is practicable and include the information (
• The Navy has agreed to evaluate the feasibility and appropriate methods to collect new data to supplement the data available on behavioral responses of marine mammals to SURTASS LFA sonar using newer methods and technologies. These types of scientific inquiries fit within the scope the Navy's Living Marine Resources (LMR) program. The LMR program weighs the various Navy research needs against each other through a needs and solicitation process. The Navy has submitted a needs statement to the LMR advisory committee to research future data collection that would supplement understanding of how SURTASS LFA sonar may affect marine resources, including mysticetes and beaked whales.
The Navy's primary mission is to organize, train, and equip combat-ready naval forces capable of accomplishing American strategic objectives, deterring maritime aggression, and assuring freedom of navigation in ocean areas. This mission is mandated by Federal law in Section 8062 of Title 10 of the United States Code, which directs the Secretary of the Navy to ensure the readiness of the U.S. naval forces.
The Secretary of the Navy and the Chief of Navy Operations (CNO) have established that anti-submarine warfare (ASW) is a critical capability for achieving the Navy's mission, and it requires unfettered access to both the high seas and littoral environments to be prepared for all potential threats by maintaining ASW core competency. The Navy is challenged by the increased difficulty in locating undersea threats solely by using passive acoustic technologies due to the advancement and use of quieting technologies in diesel-electric and nuclear submarines. At the same time, as the distance at which submarine threats can be detected decreases due to quieting technologies, improvements in torpedo and missile design have extended the effective range of these weapons.
One of the ways the Navy has addressed the changing requirements for ASW readiness was to develop SURTASS LFA sonar, which is able to reliably detect quieter and harder-to-find submarines at long range before these vessels can get within their effective weapons range to launch against their targets. SURTASS LFA sonar systems have a passive component (SURTASS), which is a towed line array of hydrophones used to detect sound emitted or reflected from submerged targets, and an active component (LFA), which is comprised of a set of acoustic transmitting elements. The active component detects objects by creating a sound pulse, or “ping” that is transmitted through the water and reflects off the target, returning in the form of an echo similar to echolocation used by some marine mammals to locate prey and navigate. SURTASS LFA sonar systems are long-range sensors that operate in the low-frequency (LF) band (
The Navy's specified activities for MMPA incidental take coverage is to continue employment of SURTASS LFA sonar systems onboard USNS surveillance ships for training and testing activities conducted under the authority of the Secretary of the Navy in the western and central Pacific Ocean and eastern Indian Ocean, which is classified as a military readiness activity, beginning August 13, 2019. The use of the SURTASS LFA sonar system will result in acoustic stimuli from the generation of sound or pressure waves in the water at or above levels that NMFS has determined would result in take of marine mammals under the MMPA. This is the principal means of marine mammal taking associated with these military readiness activities. In addition to the use of active acoustic sources, the Navy's activities include the movement of vessels. This final rule also analyzes the potential effects of this aspect of the activities. NMFS does not anticipate takes of marine mammals to result from ship strikes from any SURTASS LFA vessels because each vessel moves at a relatively slow speed (10 to 12 knots (kt) while transiting), especially when towing the SURTASS and LFA sonar systems (moving at 3 to 4 kt), and for a relatively short period of time. Combined with the use of mitigation measures as noted below, it is likely that surveillance vessels will be able to avoid any marine mammals.
The Navy will restrict SURTASS LFA sonar training and testing activities to the central and western North Pacific Ocean and eastern Indian Ocean. The Navy will not conduct training or testing utilizing SURTASS LFA sonar within the foreign territorial seas of other nations and will maintain
The specified activities may occur at any time during the seven-year period of validity of the regulations (August 13, 2019, through August 12, 2026). The Navy currently conducts SURTASS LFA sonar activities from four vessels. The Navy is planning to add new vessels to its ocean surveillance fleet. As new vessels are developed, the onboard LFA and High Frequency Marine Mammal Monitoring sonar (HF/M3 sonar) systems (discussed below) may need to be updated, modified, or even re-designed. Current indications are that future LFA sonar systems will have the same operational characteristics and that updates and modifications are focused toward miniaturizing the system components to reduce the weight and handling of the systems. If system parameters are modified as a result of these updates the Navy will determine if supplementary analysis would be required to cover the deployment of these new systems. As the new vessels and sonar system components are developed and constructed, at-sea testing would eventually be necessary. The Navy anticipates that new vessels, or new/updated sonar system components, would be ready for at-sea testing beginning in the fifth year of the time period covered by this final rule.
Thus, the Navy's activity analysis included consideration of the sonar hours associated with future testing of new or updated LFA sonar system components and new ocean surveillance vessels. This consideration resulted in two scenarios of annual sonar transmit hours: Years 1 to 4 will entail up to 496 hours total per year across all SURTASS LFA sonar vessels, while years 5 to 7 will include an increase in LFA sonar transmit hours up to 592 hours across all vessels.
The SURTASS LFA sonar transmission hours represent a distribution across six activities that include (with an approximate allocation of hours indicated):
• Contractor crew proficiency training (80 hours per year);
• Military crew (MILCREW) proficiency training (96 hours per year);
• Participation in or support of naval exercises (96 hours per year);
• Vessel and equipment maintenance (64 hours per year);
• Acoustic research testing (160 hours per year); and
• New SURTASS LFA sonar system testing (96 hours per year; will occur in years 5 to 7).
Each of these activities utilizes the SURTASS LFA sonar system within the operating profile described above; therefore, the number of hours designated for each activity represents an estimate for planning purposes.
As noted above, this rulemaking would result in the fourth such regulation for the Navy's SURTASS LFA sonar activities. The Navy is currently conducting the specified activities under an NDE that will expire on August 12, 2019. Therefore, the Navy requested MMPA rulemaking and an LOA for SURTASS LFA sonar training and testing activities effective beginning August 13, 2019, to take marine mammals incidental to the SURTASS LFA sonar activities for a seven year period.
The geographic area of the SURTASS LFA sonar activities covered by these regulations includes the western and central North Pacific Ocean and eastern Indian Ocean outside of the territorial seas of foreign nations (generally 12 nmi (22 km) from most foreign nations). Figure 1 depicts the areas of SURTASS LFA sonar activities. In areas within 12 nmi from any emergent land (coastal exclusion areas) and in areas identified as OBIAs, SURTASS LFA sonar training and testing would be conducted such that received levels of LFA sonar are below 180 dB re: 1 μPa rms sound pressure level (SPL). This restriction will be observed year-round for coastal standoff zones and during known periods of biological importance for OBIAs.
For this rulemaking, the Navy scoped the geographic extent of its specified activities to better reflect the areas where the Navy anticipates conducting SURTASS LFA sonar training and testing activities now through 2026. Fifteen representative model areas (shown in Figure 1 and listed in Table 1), with nominal modeling sites in each region, provide geographic context for the SURTASS LFA sonar activities.
As mentioned previously, the SURTASS LFA sonar system is a long-range, all-weather LF sonar (operating between 100 and 500 Hertz (Hz)) system that has both active and passive components. LFA, the active system component (which allows for the detection of an object that is not generating noise), is comprised of source elements (called projectors) suspended vertically on a cable beneath the surveillance vessel. The projectors produce an active sound pulse by converting electrical energy to mechanical energy by setting up vibrations or pressure disturbances within the water to produce a ping. The Navy uses LFA as an augmentation to the passive SURTASS operations when passive system performance is inadequate. SURTASS, the passive part of the system, uses hydrophones (
The SURTASS LFA sonar acoustic transmission is an omnidirectional beam (a full 360 degrees (°)) in the horizontal plane. The LFA sonar system also has a narrow vertical beam that the vessel's crew can steer above or below the horizontal plane. The typical SURTASS LFA sonar signal is not a constant tone, but rather is a transmission of various signal types that vary in frequency and duration (including continuous wave (CW) and frequency-modulated (FM) signals). A complete sequence of sound transmissions, also referred to by the Navy as a “ping” or a wavetrain, can be as short as six seconds (sec) or last as long as 100 sec, with an average length of 60 sec. Within each ping, the duration of any continuous frequency sound transmission is no longer than 10 seconds and the time between pings is typically from six to 15 minutes (min). Based on the Navy's historical operating parameters, the average duty cycle (
For the analysis in this rulemaking, NMFS will use the term LFA to refer to both the LFA sonar system and/or the CLFA sonar system, unless otherwise specified.
The operational speed of each vessel during sonar activities will be approximately 3.4 miles per hour (mph)
We published a notice of proposed rule in the
The majority of the comments from six private citizens expressed general opposition toward the Navy's proposed training and testing activities, cited concern for marine mammals and the oceans, and requested that NMFS not issue the LOAs, but without providing information relevant to NMFS' decisions. NMFS appreciates the concerns expressed for marine life and resources. We reiterate that no mortality of marine mammals is anticipated, nor is any injury (Level A harassment) of marine mammals anticipated; therefore, neither injuries nor mortality of marine mammals is authorized for the SURTASS LFA sonar activities. Moreover, the MMPA directs the Secretary of Commerce (whose authority has been delegated to NMFS) to allow, upon request, the incidental taking for a specified activity, provided that we are able to make the required findings under section 101(a)(5)(A) and set forth regulations containing the required prescriptions for mitigation, monitoring, and reporting after notice and comment. Therefore, these comments were not considered further. The remaining comments are addressed below.
Therefore, the Navy did not request and NMFS is not authorizing Level A harassment take. As presented in the
The SEL metric is used to determine physiological effects (PTS and TTS) and the Navy's rulemaking and LOA application, as well as this final rule, use the SEL metric to estimate these impacts as described in the NMFS' 2018 Acoustic Technical Guidance. Research indicates that behavioral responses are context specific and due to both received level and a suite of other factors including behavioral context. All other applicants use SPL thresholds for assessing Level B harassment by behavioral disruption, and the Navy uses SPL based risk functions for all of its other training and testing activities, which utilize sound sources of shorter pulse lengths. Since SPE allows for a consideration of the duration of a signal and is always more conservative than SPL rms values, it is equal to or more conservative than an SPL based risk function and NMFS concurs with its use with SURTASS LFA sonar.
Although the LFS SRP study is from the late 1990s, the source used was the most similar in source characteristics and operating parameters to the SURTASS LFA sonar source, and most closely matches the nature and context of the Navy's current activity. Specifically, the multiple LF sources that may be used in the Navy's major training exercises (such as AFTT and HSTT) include sources that are operated differently, are operated at different frequencies, and are only one component of any training activity — and for these reasons, the Navy and NMFS found it appropriate to apply the thresholds and modeling utilized for the other active Navy sources. However, for SURTASS, the results of the LFS SRP remain the best available data for the purpose of predicting potential impacts from exposure to SURTASS LFA sonar as they evaluated the behavioral responses of LF hearing specialists conducting biologically important behaviors to exposures of SURTASS LFA sonar. NMFS and the Navy have evaluated the science conducted with other sound sources (
NMFS concurs with the use of the Navy's behavioral response function and that it conservatively estimates Level B harassment takes. There is no indication that this method underestimates take. While the entire ensonified area cannot be monitored (using visual or passive and active acoustic monitoring), marine mammal observations during SURTASS LFA sonar activity and those predicted using annual activity level and location indicate the Navy has never exceeded authorized take for SURTASS LFA sonar activities (with the first LOA for SURTASS LFA sonar activities
NMFS has clearly articulated the agency's interpretation of the LPAI standard and our evaluation framework in the
NMFS' approach laid out in this rulemaking acknowledges that, even when the negligible impact standard is met, NMFS must still consider mitigation under the LPAI standard. NMFS' approach recognizes that impacts to species or stocks of marine mammals accrue through individuals and, as such, allows for reducing impacts on individuals, but with a focus on measures designed to avoid or minimize impacts on marine mammals that are likely to increase the probability or severity of population level effects. The greater the likelihood that a measure will contribute to reducing the probability or severity of adverse impacts to a species or stock, the greater the weight that measure is given when considered in combination with practicability to determine the appropriateness of a mitigation measure. While the analysis we describe can be conducted for each measure, we read the “means of effecting the LPAI” standard as ultimately applying to the totality of all required measures taken together. Accordingly, NMFS can take into account other measures that will be implemented when considering the benefit of additional measures. NMFS has weighed the relevant considerations as explained in its fuller discussion of LPAI.
While the Ninth Circuit's opinion in
Further, this rulemaking evaluated the effects of SURTASS LFA sonar activities on marine mammal habitat, specifically including prey, and concluded that marine mammal prey will not be exposed to sustained duration and intensity of sound levels that would result in significant adverse effects to marine mammal food resources. Accordingly, no additional mitigation for habitat beyond the geographic based measures identified to minimize impacts on the affected species or stocks while using/occurring in certain preferred habitat (such as OBIAs), or the coastal standoff range was warranted.
To the Commission's last point, in consideration of input from the public and our final evaluation, NMFS identified 17 areas (in the form of 14 OBIAs) as satisfying the necessary biological and geographic qualifications for OBIA designation and the Navy found that the implementation of all of these areas as OBIAs would be practicable. Accordingly, all 14 OBIAs are included in the final regulations.
Regarding the comments about practicability, NMFS and the Navy have thoroughly evaluated the practicability of all of the mitigation measures, including the OBIAs and their associated 180-dB zones, and in consideration of public comments have added an additional measure to further minimize behavioral harassment within OBIAs. Specifically, no more than 25 percent of the authorized amount of SURTASS LFA sonar will be used for training and testing within 10 nmi (18.5 km) of any single OBIA during any year unless it is required for national security, permission is obtained from the appropriate designated Command authority prior to commencement of the activity, NMFS is notified as soon as is practicable, and these sonar hours are reported in annual activity reports. This measure ensures that exposures (and thereby probability and severity of Level B harassment) to LFA sonar of individuals within OBIAs will be even further limited, both in received level and time. Specifically, the already protective circumstances described for OBIAs above will be in place up until an OBIA has been exposed to LFA sonar for 124-148 hours per year; beyond that number of hours, the maximum received level an individual may be exposed to (when both the animal is at the edge and the vessel at its closest approach) would be substantially reduced and, as described above, any marine mammals further within the OBIA would be exposed to even lower levels, and even lower when the vessel is not right at the edge.
Further, it is inappropriate to compare the 145-dB zone around dive sites to the 180-dB zone around OBIAs, as they have different purposes and are subject to different requirements. Whereas the goal of the 145-dB zone around dive sites is generally to avoid any impacts to human divers and is in no way associated with the requirements of the MMPA, take of marine mammals is expected and authorized to occur, but as required by the MMPA, NMFS and the Navy have ensured that the extensive suite of measures required will effect the least practicable adverse impact.
NMFS disagrees with any suggestion that the use of the Acoustic Technical Guidance provides erroneous results. The use of the 180-dB rms threshold to identify where PTS would occur is plainly outdated, as the best available science indicates that rms SPL is not an appropriate metric by which to gauge potential auditory injury (whereas the scientific debate regarding thresholds for Level B harassment by behavioral disruption is not about the proper metric but rather the proper level or levels and how these may vary in different contexts).
Regarding the suggestion that the thresholds are non-conservative, multiple studies from humans, terrestrial mammals, and marine mammals have demonstrated less TTS from intermittent exposures compared to continuous exposures with the same total energy because hearing is known to experience some recovery in between noise exposures, which means that the effects of intermittent noise sources such as tactical sonars are likely overestimated. Marine mammal TTS data have also shown that, for two exposures with equal energy, the longer duration exposure tends to produce a larger amount of TTS. Most marine mammal TTS data have been obtained using exposure durations of tens of seconds up to an hour, much longer than the durations of many tactical sources (much less the continuous time that a marine mammal in the field would be exposed consecutively to those levels), further suggesting that the use of these TTS data are likely to overestimate the effects of sonars with shorter duration signals.
Regarding the suggestion of pseudo-replication and erroneous models, since
In response to the Ninth Circuit's opinion and in the context of the LPAI standard, for this rulemaking NMFS directly considered the White Paper recommendations (see discussion of the White Paper recommendation in the
NMFS' interpretation of the Ninth Circuit's opinion is based on the fact that neither the MMPA nor NMFS' implementing regulations include references to, or requirements for, the precautionary approach, nor is there a clear, agreed-upon description of what the precautionary approach is or would entail in the context of the MMPA or any specific activity. Nevertheless, the MMPA by nature is inherently protective, including the requirement to mitigate to the lowest level practicable (“least” practicable adverse impacts, or “LPAI,” on species or stocks and their habitat).
The MMPA prohibits the taking of marine mammals unless exempted or permitted. Taking means to harass, hunt, capture, or kill, or attempt to harass, hunt, capture, or kill any marine mammal. Therefore, NMFS believes that the precautionary principle is already at the core of the MMPA. However, because the MMPA authorizes the taking of marine mammals under section 101(a)(5), provided certain conditions and requirements are met, NMFS must prudently apply the Precautionary Principle through careful analysis of impacts and implementation of measures that will reduce impacts to marine mammals to the lowest level practicable. As described in this document, NMFS believes that it and the Navy have applied the Precautionary Principle to the greatest extent possible for this action through an extensive aerial monitoring and mitigation program that will protect marine mammals to the greatest extent practicable. The mitigation and monitoring program are discussed later in this document. In addition, NMFS and the Navy have applied the precautionary principle by having the decision-making process in the public forum through NEPA and notice and comment rulemaking.
Taken as a whole, we do not view that response as inconsistent with our current position. We agree here that the MMPA is inherently protective. As for the mitigation imposed for the ship shock trials, we said we conducted a careful analysis of impacts and implementation of measures that will reduce impacts to marine mammals to the lowest level practicable. This consisted of an extensive aerial monitoring program, delaying detonations, and requirements for good visibility and daylight. Those specific measures would be appropriate under the LPAI approach we set forth in this rule assuming similar circumstances. The risks to individual marine mammals from the ship shock tests were potentially irreversible in terms of acute impacts to fitness in light of the nature of the specified activity, and the mitigation and monitoring measures were deemed appropriate to achieve the LPAI standard.
The Ninth Circuit's
In reaching the conclusion that NMFS' record for the 2012 rule did not establish the agency had satisfied the LPAI standard, the Court determined that NMFS failed to consider an important aspect of the problem, “namely the underprotection that accompanies making conclusive data an indispensable component of OBIA designation,” and that this “systematic underprotection of marine mammals”
We emphasize that NMFS' (and the Navy's) informational standards for OBIAs and other mitigation measures, while data-driven, do not require scientific certainty or conclusive data. This is illustrated by the fact that the OBIA criteria and factors allow for consideration of a variety of information sources, including historic whaling data, stranding data, sightings information, and regional expertise, to name a few examples of the data considered. As more detailed in Appendix C of the 2019 SURTASS LFA FSEIS/SOEIS, supporting documents that are considered include peer-reviewed articles; scientific committee reports; cruise reports or transects; personal communications or unpublished reports; dissertations or theses; books, government reports, or NGO reports; and notes, abstracts, and conference proceedings. In fact, NMFS has designated OBIAs for areas based on these types of information sources (whaling data, stranding data, unpublished reports, etc.). For example, the evidence supporting the designation of the Southern Bali OBIA (designated in this rule) is largely from an unpublished report of line-transect surveys and the National Marine Mammal Stranding Network of Indonesia.
Thus, we disagree that we are failing to take a sufficiently precautionary approach. The Pacific Remote Islands Marine National Monument (Wake/Johnson/Palmyra atolls and Kingman Reef Units, which are located in the SURTASS LFA Study Area) was on the OBIA Watchlist and was considered as a candidate OBIA. NMFS and the Navy reviewed all available data and no specific important biological behaviors of marine mammals have been characterized in these waters. As such, this marine area did not meet the biological criteria required for designation of an OBIA and was not further considered currently as an OBIA.
In a related effort, NMFS and the Navy have obligated funding to convene a Working Group/Expert Elicitation effort (beginning in 2020) to update existing Biologically Important Areas and identify new areas outside of the U.S. Exclusive Economic Zone (EEZ). As applicable, the results of this effort would be considered through the adaptive management provision of the rule.
NRDC
NMFS and the Navy are aware of the publications discussed by NRDC et al. NMFS and the Navy have considered all available data on potential impacts to marine mammal species and stocks in their analyses, not just the SURTASS LFA sonar SRP. Very few studies (many are described by the commenters) have examined odontocete behavioral responses to LF sounds. Those that have been conducted largely focus on sounds that include both the frequencies produced by LFA sonar (100-500 Hz) and also higher frequencies (greater than 500 Hz), or LFA sonar sounds at higher frequencies than proposed by the Navy (
The 2013 Scientific Advisory Group report on beaked whales and harbor porpoises can be found at:
While no hearing data on these new species are available, hearing in the Omura's whale is presumed, like other baleen whales, to be within the range of 7 Hz to 22 kHz and they have been recorded producing sounds from 15 to 50 Hz (Cerchio et al., 2015; Southall et al., 2007). Very little is known about the Deraniyagala's beaked whale and nothing specifically is known about their hearing sensitivity. They are, however, similar to other beaked whales presumed to hear in the mid-frequency range from 150 Hz to 160 kHz (NMFS, 2018). While their hearing range overlaps partially with the frequency bandwidth of SURTASS LFA sonar, it is presumed that their bandwidth of best hearing, like other beaked whales, is well above the frequency range of SURTASS LFA sonar. The intent of OBIAs is to protect those marine mammal species, such as baleen whales, most likely to hear and be affected by LFA sonar transmissions and to provide them additional protections during periods when they are conducting biologically significant activities. Thus, the primary focus of the OBIA mitigation measure is on LF hearing specialist species. Based on current information, beaked whales are not known to have increased sensitivity to LF sounds; therefore, we do not believe added protection afforded by an OBIA (
The proposal described in the Parsons (2016) opinion paper has not been adopted by the IUCN. As stated in the
A. Chagos Archipelago—NMFS should ensure that the waters encompassed by the no-take marine protected area are included in a year-round OBIA to protect important habitat for blue whales as well as other cetacean species including sperm whales.
B. Waters around Sri Lanka—NMFS should advance the following areas for year-round blue-whale mitigation areas: (i) “Southern Coastal/Offshore Waters between Galle and Yala National Park,” an area largely overlapping with OBIA Offshore Sri Lanka but which affords year-round protection to the submarine canyons that support high numbers of blue whales, and other marine megafauna, throughout the year; (ii) “Trincomalee Canyon and Associated Ecosystems” and (iii) “Coastal and Offshore Area of the Gulf of Mannar (OBIA Watchlist),” which also encompasses the currently not considered “Sri Lankan Side of Gulf of Mannar” EBSA. NRDC et al. also recommended that any waters not yet included within the boundaries of the new “South West to Eastern Sri Lanka IMMA” also be advanced for year-round protection.
Although both the Gulf of Mannar EBSA and IMMA ((iii) of this comment) were defined principally for the dugong and coastal dolphins, which occur in nearshore or inshore coastal waters too shallow for use of SURTASS LFA sonar, because baleen and sperm whale records from MPAs located within the Gulf of Mannar EBSA and IMMA are available, the NMFS and the Navy further evaluated the Gulf of Mannar region as a potential OBIA. The available information and data do not support the area's biological importance to blue whales, as only rare blue whale records, from strandings, are available for the Gulf of Mannar. Although not designated as an OBIA for SURTASS LFA sonar, the Gulf of Mannar has been added to the OBIA Watchlist so that data and information about the area will continue to be monitored.
However, most available information and data support the waters off southern and eastern Sri Lanka as important migrational and foraging areas for both pygmy blue and sperm whales, and both these regions include physiographic features and annual monsoonal transport that support higher productivity. NMFS and the Navy have designated the waters off the entire southern and eastern shore of Sri Lanka to the Trincomalee Canyon region as an OBIA for both blue (pygmy) and sperm whales.
C. Southwest India and Western Sri Lanka—NMFS should establish an OBIA southwest of India and west of Sri Lanka that reflects the boundaries of the new “Gulf of Mannar and Palk Bay IMMA” that includes the buffer recommended for protection purposes.
We conclude that the existing data are insufficient to support designating the proposed area as an OBIA for migration or foraging of North Indian Ocean blue whales. The proposed area southwest of Sri Lanka in the Indian Ocean (3° to 12° N, 74° to 80° E) has been added to the OBIA Watchlist, and NMFS and the Navy will evaluate the area as a potential OBIA through the Adaptive Management Process if new information becomes available.
D. West of the Maldives (November and April)—NMFS should establish an OBIA west of the Maldives that reflects the boundaries described in Anderson et al (2012): 1°-6° N, 70.5°-72.5° E.
E. Indonesia—Western Australia migration route—
1. Citing satellite data from Double
2. An OBIA should be established to protect Browse Basin (~14° S between 121° E and 124° E) year-round, in light of its persistent upwelling and high levels of cetacean diversity, including foraging pygmy blue whales.
3. For similar reasons, an OBIA should also be established bounding the upwelling system along the southern coasts of Java and the Sumbawa Islands, Indonesia. A similar approach to that employed by Anderson
However, more importantly, while an upwelling area has potential, at least seasonally, as an important foraging area for cetaceans, a species' seasonal occurrence as denoted by higher relative abundance in that area would indicate increased foraging during the period of increased productivity. However, NMFS and the Navy conducted a thorough review of the best available data and no data are available to support the association of blue whales foraging in this area in Indonesia. Therefore, this area does not meet the criteria for establishing an OBIA. The area has been added to the OBIA Watchlist, and NMFS and the Navy will evaluate the area as a potential OBIA through the Adaptive Management Process if new information becomes available.
A. Northern Arabian Sea—The Arabian Sea DPS is a small, highly isolated, resident population that requires an OBIA encompassing all waters north of 21°50′ N from the western coast of India westward to the boundary of the proposed SURTASS LFA study area.
However, as part of the OBIA process and upon the recommendation of public comments on the 2018 SURTASS LFA Draft SEIS/SOEIS and MMPA proposed rule, NMFS and the Navy assessed all available data and information on humpback whales in the waters off western India and the nearby Lakshadweep Archipelago. See Area 32 of Appendix C of the 2019 SURTASS LFA FSEIS/SOEIS for review of the scientific literature available for this region, which includes assessment of three recommended OBIAs encompassing the west and south coast of India: One in the Northern Arabian Sea (north of 21°50′ N from the western coast of India westward to the boundary of the SURTASS LFA study area); one along the coast of west coast of India from Konkan and Malabar out to 60 km (32.4 nmi) from shore; and one along the south coast of India from Muttom to Kanyakumari out to include Wadge Bank. Although several records indicate that rare occurrences of humpback whales from the Arabian Sea DPS have been reported from the waters off central and southern Western India, these records are far too sparse to suggest a regular occurrence of part of
B. Maldives Archipelago—Given the importance of this area for multiple species, including Arabian Sea and Southern Ocean humpback whales, and Bryde's whales, NMFS should establish an OBIA encompassing the waters within 30 nmi of the archipelago baseline.
C. Konkan and Malabar Coast—NMFS should establish an OBIA to protect this important habitat area for Arabian Sea humpback whales, blue whales, and Bryde's whales (See Figure 2 for proposed approximate boundaries).
D. Muttom-Kanyakumari and Wadge Bank, southern India—NMFS should establish an OBIA to protect this important foraging habitat area for Arabian Sea humpback whales and potentially other baleen whale species (See Figure 3 for proposed approximate boundaries).
E. Northwestern Pacific Breeding Areas—NMFS should afford protection to: (i) The Okinawa/Philippines humpback whale DPS by establishing an OBIA encompassing waters less than 200 m deep—typical of humpback whale wintering habitat—surrounding the islands of Okinawa from January to April and the islands of Ogasawara from December to June. The commenters note that Ogasawara is included on NMFS' list of potential OBIAs (84 FR at Table 21, 7) and strongly recommend that this area be carried forward for inclusion and expanded to the 200 m depth contour; and (ii) The newly designated “Babuyan Marine Corridor IMMA” and buffer recommended for protection, primarily identified as the only breeding area for humpback whales in the Philippines.
The area surrounding the islands of Okinawa was designated as part of the Ryukyu-Philippines OBIA. As recommended all areas of the Babuyan Marine Corridor IMMA outside of the coastal standoff zone were designated as part of the Ryukyu-Philippines OBIA. The Ryukyu-Philippines OBIA is designated seasonally from January to April (Okinawa) and late February to April (Philippines). Based on the best available information, the boundary for the Ryukyu-Philippines OBIA was derived by creating a buffer that was offset from the coastal standoff range by less than 2 nmi (3.7 km) around the majority of the Ryukyu Islands and Babuyan Islands, with straight lines creating transit corridors between the Ryukyu Islands, the eastern Taiwan coast, and the Babuyan Islands off the northern Philippines. The boundary off eastern Taiwan was created as a straight line less than 3 nmi (5.6 km) from the Taiwanese coastal standoff range. Although the Ryukyu Islands extend all the way to Kyushu Island of the main Japanese islands, since no records indicate humpback whales are sighted in these waters of the northern Ryukyu Islands, the OBIA boundary extends only as far north as Amami Island.
F. Northwestern Pacific Feeding Areas—NMFS should establish: (i) An OBIA extending from the east Kamchatka coastline offshore to the continental shelf break (encompassing the “Watchlist” OBIA “Southeast Kamchatka Coastal waters”), from June through September; and (ii) an OBIA reflecting the boundaries of the “Commander Islands Shelf and Slope EBSA,” which has not yet been considered.
NMFS and the Navy considered the Southeast Kamchatka Coastal Waters (although it was not on the OBIA Watchlist) and designated an OBIA off southeastern Kamchatka. Further details on the seasonal restrictions and areal extent may be found in Appendix C of the 2019 SURTASS LFA FSEIS/SOEIS.
A. Waters off Sri Lanka—Similar to blue whales, NMFS should advance the following three areas currently being considered by NMFS as year-round mitigation areas for both blue and sperm whales (and, in some cases, Bryde's whales): (i) “Southern Coastal/Offshore Waters between Galle and Yala National Park”, (ii) “Trincomalee Canyon and Associated Ecosystems”, and (iii) “Coastal and Offshore Area of the Gulf of Mannar” (OBIA Watchlist), which also encompasses the currently not considered “Sri Lankan Side of Gulf of Mannar” EBSA.
B. Lakshadweep Archipelago—NMFS should consider designating an OBIA to encompass the entirety of the Lakshadweep Archipelago and the waters therein.
C. Northwestern Pacific—To protect foraging areas for sperm whales, NMFS should utilize the boundaries of three historic whaling grounds (
Raja Ampat and Northern Bird's Head was considered as a candidate OBIA. However, none of the areas surveyed in any of the best available data occur within the SURTASS LFA sonar Study Area. Since no data exist to support important biological activities by marine mammals being carried out in the part of this marine area that lies within the SURTASS LFA Study Area, this area did not meet the biological criteria for OBIA designation and was not considered further as an OBIA. The area has been added to the OBIA Watchlist, and NMFS and the Navy will evaluate the area as a potential OBIA through the Adaptive Management Process if new information becomes available.
Peter the Great Bay was considered as a candidate OBIA. Only a small portion of Peter the Great Bay lies outside the coastal standoff zone and thus meets the geographic criteria. While Peter the Great Bay is an important seasonal reproductive area for the spotted seal, pupping activities are conducted in the northern reaches of the bay, well within the coastal standoff zone, and no pupping or reproductive activity is known to occur in the portion of the bay outside the coastal standoff zone. Further, based on currently available information and data, the spotted seal is not known to have increased sensitivity to LF sound; the best hearing sensitivity in-water of the spotted seal is between 2 and 72 kHz (Reichmuth et al., 2013; Sills et al., 2014). Reichmuth et al. (2016) found no TTS in trained spotted seals exposed to LF impulsive sounds that represented single seismic air gun transmissions (which are different from LFA sonar signals). As such, an OBIA is not warranted. For these reasons, the IMMA for Peter the Great Bay was not further considered as an OBIA for SURTASS LFA sonar.
The Pacific Remote Islands Marine National Monument (Wake/Johnson/Palmyra atolls and Kingman Reef Units which are located in the SURTASS LFA Study Area) was on the OBIA Watchlist and was considered as a candidate OBIA. NMFS and the Navy reviewed all available data and no specific important biological behaviors of marine mammals have been characterized in these waters. As such, this marine area did not meet the biological criteria required for designation of an OBIA and was not further considered currently as an OBIA.
Additionally, all of the activities utilize the SURTASS LFA sonar system within the same operating profile, such that any single hour of SURTASS LFA sonar transmissions is the same as all others. The differentiation of activities was merely for planning purposes, to aid in determining the overall number of transmission hours per year for SURTASS LFA sonar training and testing. It is not practicable to develop geographic mitigation measures for each activity.
Regarding the alternatives, NMFS' early involvement in the development of the 2019 SURTASS LFA FSEIS/SOEIS and role in evaluating the effects of incidental take under the MMPA ensured that the 2018 SURTASS LFA DSEIS/SOEIS would include adequate analysis of a reasonable range of alternatives. The 2019 SURTASS LFA FSEIS/SOEIS includes a No Action Alternative specifically to address what could happen if NMFS did not issue an MMPA authorization. The other two Alternatives address two action options that the Navy could potentially pursue while also meeting their mandated Title 10 training and testing responsibilities. More importantly, these alternatives fully analyze a comprehensive variety of mitigation measures. This mitigation analysis supported NMFS' evaluation of our options in potentially issuing an MMPA authorization, which primarily revolves around the appropriate mitigation to prescribe. This approach to evaluating a reasonable range of alternatives is consistent with NMFS policy and practice for issuing MMPA incidental take authorizations. NOAA has independently reviewed and evaluated the SEIS, including the purpose and need statement and range of alternatives, and determined that the 2019 SURTASS LFA FSEIS/SOEIS fully satisfies NMFS' NEPA obligations related to its decision to issue the MMPA final rule and associated LOA, and we have adopted it.
Forty-six species of marine mammals, including 10 baleen whale (mysticete); 31 toothed whale (odontocete); and 5 seal/sea lion (pinniped) species that represent 139 stocks (as currently classified) have confirmed or possible occurrence within potential SURTASS LFA sonar activity areas in the central and western North Pacific Ocean and eastern Indian Ocean. Multiple stocks of some species are affected, and independent assessments are conducted to make the necessary findings and determinations for each of these.
There are 11 marine mammal species under NMFS' jurisdiction listed as endangered or threatened under the Endangered Species Act (ESA; 16 U.S.C. 1531
Chinese river dolphins (
None of the marine mammal species which the U.S. Fish and Wildlife Service (USFWS) is responsible for managing occur in geographic areas that would overlap with the SURTASS LFA sonar Study Area. Therefore, the Navy has determined that SURTASS LFA sonar activities would have no effect on the endangered or threatened species or the critical habitat of the ESA-listed species under the jurisdiction of the USFWS. These species are not considered further in this notice.
To accurately assess the potential effects of SURTASS LFA sonar activities, the Navy modeled 15 representative sites in the SURTASS LFA sonar activity area. Tables 2 through 16 (below) summarize the abundance, status under the ESA, and density estimates of the marine mammal species and stocks that have confirmed or possible occurrence within the 15 SURTASS LFA sonar modeling areas in the central and western North Pacific Ocean and eastern Indian Ocean. Information on how the density and abundance stock estimates were derived for the selected mission sites is described in Appendix D of the 2019 SURTASS FSEIS/SOEIS and references for the abundances and densities described are provided in Tables 2 through 16.
Stock abundance and density estimates are derived from the best available source documentation and species or stock-specific information on the marine mammals that could occur in that area. The Navy developed the abundance and density estimates by first using estimates from line-transect surveys that occurred in or near each of the 15 model sites (
The Navy provides detailed descriptions of the distribution, abundance, diving behavior, life history, and hearing vocalization information for each affected marine mammal species with confirmed or possible occurrence within SURTASS LFA sonar study areas in section 4 (pages 4-1 through 4-44) of the application (available online at
Although not repeated in this document, NMFS has reviewed these data, determined them to be the best available scientific information for this rulemaking, and considers this information part of the administrative record for this action. Additional information is available in NMFS' Marine Mammal Stock Assessment Reports, which may be viewed at
NMFS provided a brief primer on the subjects of underwater sound, the metrics used in the analysis of the effects of underwater sound on marine mammals, and marine mammal hearing sensitivities and vocalizations in the
Southall
Recent studies on the behavioral responses of cetaceans to mid-frequency sonar examine and continue to demonstrate the importance of not only sound source parameters, but exposure context (
This section indicates the numbers of takes that NMFS is authorizing in its LOA, which are based on the maximum number of instances in which marine mammals could be reasonably expected to be taken, as described in detail below. NMFS coordinated closely with the Navy in the development of its incidental take application, and agrees that the methods the Navy has put forth described herein to estimate take (including the model, thresholds, and density estimates), and the resulting numbers estimated for authorization, are appropriate and based on the best available science.
Level B harassment is the only means of take expected to result from these activities. For military readiness activities, the MMPA defines “harassment” as: (i) Any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild (Level A Harassment); or (ii) any act that disturbs or is likely to disturb a marine mammal or marine mammal stock in the wild by causing disruption of natural behavior patterns, including but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering, to a point where such behavioral patterns are abandoned or significantly altered (Level B Harassment). As described in the
Generally speaking, for acoustic impacts we estimate the amount and type of harassment by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be taken by behavioral disruption or incur some degree of temporary or permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day or event; (3) the density or occurrence of marine mammals within these ensonified areas; and (4) the number of days of activities or events. Below, we describe these components in more detail, as well as the model the Navy used to incorporate these components to predict impacts, and present the take estimates.
To derive density estimates, direct estimates from line-transect surveys that occurred in or near each of the 15 modeled areas (described in the
To model potential behavioral impacts to marine animals from exposure to SURTASS LFA sonar sound, the Navy has developed a methodology to estimate the total exposure of modeled animals exposed to multiple pings over an extended period of time. NMFS concurs that this model is appropriate and utilizes the best available science, and adopted the model for use in the analysis to support these regulations. The Navy's acoustic model analyzes the following components: (1) The LFA sonar source modeled as a point source, with an effective source level (SL) of approximately 235 dB re: 1 μPa at 1 m (SPL) (note: This was incorrectly stated as 240 dB in the proposed rule); (2) a 60 second duration signal; and (3) a beam pattern that is correct for the number and spacing of the individual projectors (source elements). This source model, when combined with the three-dimensional transmission loss (TL) field generated by the Parabolic Equation (PE) acoustic propagation model, defines the received level (RL) (in SPL) sound field surrounding the source for a 60-second LFA sonar signal (
The Navy uses a behavioral response function to estimate the number of behavioral responses that would qualify as behavioral Level B harassment under the MMPA. NMFS determined that this threshold is appropriate for SURTASS LFA sonar and utilizes the best available science and adopted this function for use in the analysis for these regulations. The behavioral response function is described fully in Chapter 4 and Appendix B of the 2019 SURTASS LFA FSEIS/SOEIS.
A wide range of behavioral reactions may qualify as Level B harassment under the MMPA, including but not limited to avoidance of the sound source, temporary changes in vocalizations or dive patterns, temporary avoidance of an area, or temporary disruption of feeding, migrating, or reproductive behaviors. The estimates calculated using the behavioral response function do not differentiate between the different types of potential behavioral reactions, nor do the estimates provide information regarding the potential fitness or other
The definition of Level B harassment for military readiness activities contemplates the disruption of behavioral patterns to the point where they are abandoned or significantly altered. It is difficult to predict with certainty, given existing data, when exposures that are generally expected are likely to result in significantly altered or abandoned behavioral patterns. Therefore, the Navy's take estimates capture a wider range of impacts, including less significant responses. Moreover, NMFS does not assume that each instance of Level B harassment modeled by the Navy will have, or is likely to have, an adverse impact on an individual's fitness. Rather, NMFS considers the available scientific evidence to determine the likely nature of the modeled behavioral responses and the potential fitness consequences for affected individuals in its negligible impact evaluation. Accordingly, we consider application of this Level B harassment threshold as identifying the maximum number of instances in which marine mammals could be reasonably expected to experience a disruption in behavior patterns to a point where they are abandoned or significantly altered (
The Navy's acoustic impact analysis for marine mammals, which NMFS has adopted for the purposes of these regulations, represents an evolution that builds upon the analysis and methodology documented in previous SURTASS LFA sonar NEPA efforts (DoN, 2001; 2007; 2012; and 2017), and includes updates of the most current acoustic thresholds and methodology to assess auditory impacts (NMFS, 2018). A detailed discussion of the acoustic impact analysis is provided in Appendix B of the 2019 SURTASS LFA FSEIS/SOEIS, but is summarized here.
Using the Acoustic Integration Model (AIM), the Navy modeled 15 representative model areas in the central and western North Pacific and eastern Indian Oceans, representing the acoustic regimes and marine mammal species that may be encountered during SURTASS LFA sonar training and testing activities. Modeling was conducted for one 24-hour period in each of the four seasons in each model area. To predict acoustic exposure, the LFA sonar ship was simulated traveling in a triangular pattern at a speed of 4 kt (7.4 kilometers per hour (kph), for eight hours in each leg of the triangle. The duration of the LFA sonar transmission was modeled as 24 hrs, with a signal duration of 60 seconds and a duty cycle of 10 percent (
The acoustic field around the LFA sonar source was predicted by the Navy standard parabolic equation propagation model using the defined LFA sonar operating parameters. Each marine mammal species potentially occurring in a model area in each season was simulated by creating animats (simulated animals) programmed with behavioral values describing their dive and movement patterns. AIM then integrates the acoustic field created from the underwater transmission of LFA sonar with the three-dimensional (3D) movement of marine mammals to estimate their potential for sonar exposure at each 30-second timestep within the 24-hr modeling period. Thus, the output of AIM is the time history of exposure for each animat.
The Navy assesses the potential impacts on marine mammals by predicting the sound field that a given marine mammal species/stock could be exposed to over time in a potential model area. This is a multi-part process involving: (1) The ability to measure or estimate an animal's location in space and time; (2) the ability to measure or estimate the three-dimensional sound field at these times and locations; (3) the integration of these two data sets into the acoustic impact model to estimate the total acoustic exposure for each animal in the modeled population; and (4) the conversion of the resultant cumulative exposures for a modeled population into an estimate of the risk of a potential injury (
To estimate the potential impacts for each marine mammal stock on an annual basis, several calculation steps are required. First, the potential impact for one LFA sonar transmission hour is calculated. Second, the number of LFA sonar transmission hours that may occur in each model area for each activity is determined. The third step is to determine the number of model areas in which each stock may occur for each activity, and the fourth step is to select the maximum per-hour impact for each stock that may occur in the model areas for that activity. The final step is to multiply the results of steps two, three, and four to calculate the potential annual impacts per activity, which are then summed across the stocks for a total potential impact for all individual activities. The number of individual marine mammals that may be taken over the seven-year period of the proposed SURTASS LFA sonar training and testing activities was estimated by multiplying the maximum number of instances of exposure for each species/stock calculated annually for each of the two transmission scenarios (496 transmission hours in years 1-4 and 592 transmission hours in years 5-7), and then adding these to calculate a total estimate. For example, for the WNP blue whale, four years of 496 transmission hours (for years 1-4) resulted in 90 Level B harassment takes/year and three years of 592 transmission hours (for years 5-7) resulted in 123 Level B harassment takes/year. Multiplying 90 takes/year by 4 years equals 360 Level B harassment takes for the 496 transmission hour scenario, and multiplying 123 takes/year by 3 years equals 369 Level B harassment takes for the 592 transmission hour scenario. The final step is adding the totals for the two transmission scenarios to arrive at a total (360 + 369 = 729 Level B harassment takes over the 7-year period for WNP blue whales). For additional detail on modeling and take estimation, please refer to Chapter 6.6 (
With the implementation of the three-part monitoring programs (visual, passive acoustic, and HF/M3 monitoring, as discussed below), NMFS and the Navy do not expect that marine mammals would be injured by SURTASS LFA sonar because a marine mammal is likely to be detected and active transmissions suspended or delayed to avoid injurious exposure. The probability of detection of a marine mammal of any size by the HF/M3 system within the LFA sonar mitigation zone approaches 100 percent over the course of multiple pings (see the 2001 SURTASS LFA FOEIS/EIS, Subchapters 2.3.2.2 and 4.2.7.1 for the HF/M3 sonar testing results as well as section 5.4.3 of the 2019 SURTASS LFA FSEIS/SOEIS
The distances to the TTS thresholds are less than 50 ft (15 m) for mid-frequency (MF) and high-frequency (HF) cetaceans and otariids; 216 ft (66 m) for phocids; and 1,354 ft (413 m) for low-frequency (LF) cetaceans if an animal were to remain at those distances for an entire LFA sonar signal (60 sec). While it is likely that mitigation measures would also avoid TTS, some small subset of the animals may also experience TTS if exposed for longer periods of time at greater distances; however, any of the TTS impacts would be expected to be captured within the estimate of Level B harassment takes by behavioral disruption and separate enumeration is not necessary or appropriate. Any TTS incurred would likely be of a low level and of short duration because we do not expect animals to be exposed for long durations close to the source.
Of note, the estimated number of Level B harassment takes does not necessarily equate to the number of individual animals the Navy expects to harass (which is lower), but rather to the instances of take (
More detailed information for each of the steps to quantify take estimates, as well as an illustrative example, are provided in section 6.6 of the Navy's application (Quantitative Impact Analysis for Marine Mammals). A more thorough description of the impact analysis is also provided in the 2019 SURTASS LFA FEIS/SOEIS, specifically section 4.5.2.1.3, Marine Mammals (Quantitative Impact Analysis for Marine Mammals subsection) and Appendix B (Marine Mammal Impact Analysis). NMFS has reviewed this information and has accepted the Navy modeling procedure and results. The total maximum potential impact on an annual basis for years 1-4 and years 5-7 as well as the total overall takes for the seven-year period covered by this rulemaking are presented in Table 17 below. These are considered conservative estimates because they are based on the maximum potential impact to a species or stock across all model areas in which an activity may occur. Therefore, if an activity occurs in a different model area than the area where the maximum potential impact was predicted, the actual potential impact may be less than estimated. However, since the Navy cannot forecast where a specific activity may be conducted this far in advance, this maximum estimate provides the Navy with the flexibility to conduct its training and testing activities across all modeled areas identified for each activity.
Under section 101(a)(5)(A) of the MMPA, NMFS must set forth the “permissible methods of taking pursuant to such activity, and other means of effecting the least practicable adverse impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for subsistence uses” (hereinafter referred to as “LPAI” or “least practicable adverse impact”). NMFS does not have a regulatory definition for least practicable adverse impact. The NDAA for FY 2004 amended the MMPA as it relates to military readiness activities and the incidental take authorization process such that a determination of least practicable adverse impact shall include consideration of personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
In
Before NMFS can issue incidental take regulations under section 101(a)(5)(A) of the MMPA, it must make a finding that the total taking will have a “negligible impact” on the affected “species or stocks” of marine mammals. NMFS' and USFWS' implementing regulations for section 101(a)(5) both define “negligible impact” as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103 and 50 CFR 18.27(c)). Recruitment (
As we stated in the preamble to the final rule for the incidental take implementing regulations, not every population-level impact violates the negligible impact requirement. The negligible impact standard does not require a finding that the anticipated take will have “no effect” on population numbers or growth rates: “The statutory standard does not require that the same recovery rate be maintained, rather that no significant effect on annual rates of recruitment or survival occurs. [T]he key factor is the significance of the level of impact on rates of recruitment or survival.” (54 FR 40338, 40341-42; September 29, 1989).
While some level of impact on population numbers or growth rates of a species or stock may occur and still satisfy the negligible impact requirement—even without consideration of mitigation—the least practicable adverse impact provision separately requires NMFS to prescribe 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,” 50 CFR 216.102(b), which are typically identified as mitigation measures.
The negligible impact and LPAI standards in the MMPA both call for evaluation at the level of the “species or stock.” The MMPA does not define the term “species.” However, Merriam-Webster Dictionary defines “species” to include “related organisms or
This interpretation is consistent with Congress's statutory findings for enacting the MMPA, nearly all of which are most applicable at the species or stock (
Recognizing this common focus of the least practicable adverse impact and negligible impact provisions on the “species or stock” does not mean we conflate the two standards. Despite some common statutory language, we recognize the two provisions are different and have different functions. First, a negligible impact finding is required before NMFS can issue an incidental take authorization. Although it is acceptable to use the mitigation measures to reach a negligible impact finding (
Section 101(a)(5)(A)(i)(II) requires NMFS to issue, in conjunction with its authorization, binding—and enforceable—restrictions (in the form of regulations) setting forth how the activity must be conducted, thus ensuring the activity has the “least practicable adverse impact” on the affected species or stocks and their habitat. In situations where mitigation is specifically needed to reach a negligible impact determination, section 101(a)(5)(A)(i)(II) also provides a mechanism for ensuring compliance with the “negligible impact” requirement. Finally, we reiterate that the LPAI standard also requires consideration of measures for marine mammal habitat, with particular attention to rookeries, mating grounds, and other areas of similar significance, and for subsistence impacts, whereas the negligible impact standard is concerned solely with conclusions about the impact of an activity on annual rates of recruitment and survival.
In
We have carefully reviewed and considered the Ninth Circuit's opinion in
Given the
Our evaluation of potential mitigation measures includes consideration of two primary factors:
(1) The manner in which, and the degree to which, implementation of the potential measure(s) is expected to reduce adverse impacts to marine mammal species or stocks, their habitat, and their availability for subsistence uses (where relevant). This analysis considers such things as the nature of the potential adverse impact (such as likelihood, scope, and range), the likelihood that the measure will be effective if implemented, and the
(2) The practicability of the measures for applicant implementation. Practicability of implementation may consider such things as cost, impact on activities, and, in the case of a military readiness activity, specifically considers personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity. 16 U.S.C. 1371(a)(5)(A)(iii).
While the language of the least practicable adverse impact standard calls for minimizing impacts to affected species or stocks and their habitats, we recognize that the reduction of impacts to those species or stocks accrues through the application of mitigation measures that limit impacts to individual animals. Accordingly, NMFS' analysis focuses on mitigation measures that are designed to avoid or minimize impacts on individual marine mammals that have the potential to increase the probability or severity of population-level effects.
While direct evidence of impacts to species or stocks from a specified activity is rarely available, and additional study is still needed to understand how specific disturbance events affect the fitness of individuals of certain species, there have been improvements in understanding the process by which disturbance effects are translated to the population. With recent scientific advancements (both marine mammal energetic research and the development of energetic frameworks), the relative likelihood or degree of impacts on species or stocks may often be inferred given a detailed understanding of the activity, the environment, and the affected species or stocks. This same information is used in the development of mitigation measures and helps us understand how mitigation measures contribute to lessening effects (or the risk thereof) to species or stocks. We also acknowledge that there is always the potential that new information, or a new recommendation that we had not previously considered, becomes available and necessitates reevaluation of mitigation measures (which may be addressed through adaptive management) to see if further reductions of population impacts are possible and practicable.
In the evaluation of specific measures, the details of the specified activity will necessarily inform each of the two primary factors discussed above (expected reduction of impacts and practicability), and are carefully considered to determine the types of mitigation that are appropriate under the least practicable adverse impact standard. Analysis of how a potential mitigation measure may reduce adverse impacts on a marine mammal stock or species, consideration of personnel safety, practicality of implementation, and consideration of the impact on effectiveness of military readiness activities are not issues that can be meaningfully evaluated through a yes/no lens. The manner in which, and the degree to which, implementation of a measure is expected to reduce impacts, as well as its practicability in terms of these considerations, can vary widely. For example, a time/area restriction could be of very high value for reducing the potential for, or severity of, population-level impacts (
1.
The emphasis given to a measure's ability to reduce the impacts on a species or stock considers the degree, likelihood, and context of the anticipated reduction of impacts to individuals (and how many individuals) as well as the status of the species or stock.
The ultimate impact on any individual from a disturbance event (which informs the likelihood of adverse species- or stock-level effects) is dependent on the circumstances and associated contextual factors, such as duration of exposure to stressors. Though any proposed mitigation needs to be evaluated in the context of the specific activity and the species or stocks affected, measures with the following types of effects have greater value in reducing the likelihood or severity of adverse species- or stock-level impacts: Avoiding or minimizing injury or mortality; limiting interruption of known feeding, breeding, mother/young, or resting behaviors; minimizing the abandonment of important habitat (temporally and spatially); minimizing the number of individuals subjected to these types of disruptions; and limiting degradation of habitat. Mitigating these types of effects is intended to reduce the likelihood that the activity will result in energetic or other types of impacts that are more likely to result in reduced reproductive success or survivorship. It is also important to consider the degree of impacts that are expected in the absence of mitigation in order to assess the added value of any potential measures. Finally, because the least practicable adverse impact standard gives NMFS discretion to weigh a variety of factors when determining appropriate mitigation measures and because the focus of the standard is on reducing impacts at the species or stock level, the least practicable adverse impact standard does not compel mitigation for every kind of take, or every individual taken, if that mitigation is unlikely to contribute meaningfully to the reduction of adverse impacts on the species or stock and its habitat, even when practicable for implementation by the applicant.
The status of the species or stock is also relevant in evaluating the appropriateness of potential mitigation measures in the context of least practicable adverse impact. The following are examples of factors that may (either alone, or in combination) result in greater emphasis on the importance of a mitigation measure in
Habitat mitigation, particularly as it relates to rookeries, mating grounds, and areas of similar significance, is also relevant to achieving the standard and can include measures such as reducing impacts of the activity on known prey utilized in the activity area or reducing impacts on physical habitat. As with species- or stock-related mitigation, the emphasis given to a measure's ability to reduce impacts on a species or stock's habitat considers the degree, likelihood, and context of the anticipated reduction of impacts to habitat. Because habitat value is informed by marine mammal presence and use, in some cases there may be overlap in measures for the species or stock and for use of habitat.
We consider available information indicating the likelihood of any measure to accomplish its objective. If evidence shows that a measure has not typically been effective nor successful, then either that measure should be modified or the potential value of the measure to reduce effects should be lowered.
2.
As with other rulemakings for SURTASS LFA sonar, our consideration of mitigation under the LPAI standard was conducted at scales that take into account the entire rulemaking period and geographic scope of potential areas of SURTASS LFA sonar activities and the types of impacts that could occur under the rule. NMFS reviewed the proposed activities and the proposed mitigation measures as described in the Navy's application, and the measures added by NMFS, to determine if they would satisfy the standard of LPAI on marine mammal species or stock(s) and their habitat. Since the proposed rule 14 OBIAs have been designated and additional mitigation has been added that limits the number of hours of SURTASS LFA sonar transmission occurring around any single OBIA (see below). As described below, and in the 2019 SURTASS LFA FSEIS/SOEIS, NMFS has determined that the following mitigation measures would satisfy the LPAI standard:
(1)
(a) Visual monitoring;
(b) Passive acoustic monitoring; and
(c) Active acoustic monitoring.
(2)
(a) The received level of SURTASS LFA sonar transmissions during training and testing events will not exceed 180 dB re: 1 μPa rms within 1 km seaward of any OBIA boundary, during the indicated periods of biological importance;
(b) no more than 25 percent of the authorized amount (transmission hours) of SURTASS LFA sonar for training and testing will be used within 10 nmi (18.5 km) of any single OBIA during any year (no more than 124 hours in years 1-4 and 148 hours in years 5-7) unless the following conditions are met: Should national security present a requirement to conduct more than 25 percent of authorized hours of SURTASS LFA sonar within 10 nmi (18.5 km) of any single OBIA during any year, naval units will obtain permission from the appropriate designated Command authority prior to commencement of the activity. The Navy will provide NMFS with notification as soon as is practicable and include the information (
(c) the received level of SURTASS LFA sonar transmissions will not exceed 180 dB re: 1 μPa rms within the Coastal Standoff Zone (22 km (12 nmi) from any land);
(d) no activities with the SURTASS LFA sonar system will occur within territorial seas of foreign nations, which are areas up to 12 nmi from shore, depending on the distance that individual nations claim; and
(e) no activities with the SURTASS LFA sonar system will occur within the waters of Penguin Bank, Hawaii (defined as water depth of 600 ft (183 m)), and ensonification of Hawaii state waters (out to 3 nmi) will not exceed 145 dB re: 1 μPa rms. This measure, which is a result of an agreement between the Navy and the State of Hawaii through its CZMA Program, was correctly described in the 2018 Draft SURTASS LFA SEIS/SOEIS and 2019 SURTASS LFA FSEIS/SOEIS. The proposed rule incorrectly suggested that Navy would not operate the SURTASS LFA sonar system within Hawaii state waters. The description of this measure is corrected in this final rule.
Below, we discuss the mitigation measures as agreed upon by the Navy and NMFS. For additional details regarding the Navy's mitigation measures, please also see Chapter 5 in the 2019 SURTASS LFA FSEIS/SOEIS.
The Navy requested, and NMFS includes in this rule, a single, fixed 2,000-yard (yd) (0.99 nmi/1,829 m/1.83 km) mitigation zone rather than a combined mitigation and buffer zone (based on real-time propagation modeling) of nominally 1.08 nmi (2 km), which has been required in past rules. This modification will standardize and simplify Navy mitigation and monitoring implementation and includes consideration of updated information on marine mammal injury thresholds. The 180 dB re: 1 µPa rms threshold for the onset of potential injury has been used in the impact assessment for SURTASS LFA sonar since 2001, and the isopleth associated with that threshold has also previously informed the development of mitigation. However, NMFS'
When estimating the onset of injury for non-impulsive sound sources (PTS), NMFS' 2018 Acoustic Technical Guidance defines weighted thresholds as cumulative sound exposure levels (SEL
To calculate the SPL of these SEL
In previous rules, prior to commencing and during SURTASS LFA sonar training and testing transmissions, the Navy determined (in real time) the propagation of LFA sonar signals in the ocean and the distance from the SURTASS LFA sonar source to the 180 dB re: 1 μPa rms isopleth (See
The Navy modeling of the sound field in near-real time conditions provided the information necessary to calculate the mitigation zone for which delay or suspension of LFA sonar transmissions would occur. Acoustic model updates were nominally made every 12 hrs, or as meteorological or oceanographic conditions changed. If a marine mammal entered the calculated threshold distance (plus its associated buffer distance), the sonar operator notified the senior military member in charge, who would order the delay or suspension of transmissions. If it were
As an added protective measure, NMFS previously required the Navy to include a “buffer zone” that extended an additional 1 km (0.62 mi; 0.54 nm) beyond the Navy's proposed 180 dB re: 1 μPa rms isopleth LFA sonar mitigation zone. This buffer typically coincides with the full detection range of the HF/M3 active sonar for mitigation monitoring (approximately 2 to 2.5 km; 1.2 to 1.5 mi; 1.1 to 1.3 nmi). Thus, implementation of this additional 1 km buffer zone increases the shutdown zone around the LFA sonar array and vessel and, given the highly effective monitoring capabilities (described below), ensures that no marine mammals will be exposed to an SPL greater than approximately 174 dB re: 1 μPa rms. In past applications, the Navy has noted that this additional mitigation is practicable and the Navy has implemented this measure in previous authorizations. In addition, as noted above for the 180 dB mitigation zone, based on new scientific information and updated criteria in NMFS' 2018 Acoustic Technical Guidance, this buffer mitigation is likely even more effective at avoiding the likelihood of PTS and reducing the degree of TTS than previously known when analyzed and employed in previous authorizations. The proposed 2,000 yd (1.83 km) single fixed mitigation zone would cover virtually all of the previous combined mitigation/buffer zone of nominally 1.08 nmi (2 km), since the difference between 2,000 yd and 2 km is only about 187 yd (or 0.09 nmi (167 m)). Likewise, the difference in the sound field of the combined mitigation/buffer zone of 2,000 yd (1.83 km) versus 1.08 nmi (2,187 yd; 2 km) would also be negligible. At 2,000 yd (1.83 km), modeling shows that the received level would be 174.75 dB while at 1.08 nmi (2 km), the received level would be 173.98 dB, which is a difference of only 0.77 dB. This very small difference in received level would not be perceptible to a marine mammal.
In summary, Navy proposed, and NMFS will require, a single, fixed, combined mitigation/buffer zone for SURTASS LFA sonar training and testing activities to standardize and simplify implementation of this monitoring requirement using standard Navy metrics (yards not meters). This measure will be effective mitigation in all acoustic environments, even in the rare event of a strong acoustic duct in which the volume of water ensonified to 180 dB re: 1 μPa rms could exist at a horizontal distance somewhat greater than 0.54 nmi (1 km) (DoN, 2001). With the mitigation zone of 2,000 yd (1.83 km), there is no potential for animals to be exposed to received levels greater than 180 dB re: 1 μPa rms, or levels above the new injury (PTS) thresholds identified in NMFS' 2018 Acoustic Technical Guidance, and, therefore, marine mammals are protected from both acoustic injury and more severe occurrences of Level B harassment.
Visual monitoring will consist of daytime observations for marine mammals from the bridge of SURTASS LFA sonar vessels by lookouts (personnel trained in detecting and identifying marine mammals). Navy shipboard lookouts are highly qualified and experienced observers of the marine environment. Their operational duties require that they report all objects sighted on the water surface to the senior military member in charge (
Daylight is defined as 30 min before sunrise until 30 min after sunset. Visual monitoring will begin 30 min before sunrise or 30 min before the Navy deploys the SURTASS LFA sonar array. Lookouts will continue to monitor the area until 30 min after sunset or continue to monitor for at least 15 min after completion of the SURTASS LFA sonar training and testing transmission.
The lookouts will maintain a topside watch and marine mammal observation log during daytime activities that employ SURTASS LFA sonar in the active mode. These trained monitoring personnel maintain a topside watch and scan the water's surface around the vessel systematically with standard binoculars (7x) and with the naked eye. If the lookout sights a possible marine mammal, the lookout will use big-eye binoculars (25x) to confirm the sighting and potentially identify the marine mammal species. Lookouts will enter numbers and identification of marine mammals sighted into the log, as well as any unusual behavior. A designated ship's officer will monitor the conduct of the visual watches and periodically review the log entries.
If a lookout observes a marine mammal outside of the 2,000-yd LFA sonar mitigation zone, the lookout will notify the senior military member in charge of the watch. The senior military member in charge shall then notify the HF/M3 active sonar operator to determine the range and projected track of the marine mammal. If the HF/M3 sonar operator or the lookout determines that the marine mammal will pass within the 2,000-yd LFA sonar mitigation zone, the senior military member in charge shall order the delay or suspension of SURTASS LFA sonar training and testing transmissions when the animal enters the 2,000-yd LFA sonar mitigation zone to prevent Level A harassment as well as reduce the potential for TTS and more severe behavioral responses.
If a lookout observes a marine mammal anywhere within the 2,000-yd LFA mitigation/buffer zone (required by NMFS), the senior military member in charge will be notified so that the LFA sonar training and testing transmissions will be immediately shut down or suspended. The lookout will enter his/her observations about sighted marine mammals into the log: date/time; vessel name; geographic coordinates/position; type and number of marine mammals observed; assessment basis (
Marine mammal biologists who are qualified in conducting at-sea marine mammal visual monitoring from surface vessels will train and qualify designated ship personnel to conduct at-sea visual monitoring. This training may be accomplished either in-person or via video training.
For the second of the three-part mitigation monitoring measures, the Navy will conduct passive acoustic monitoring using the SURTASS towed horizontal line array to detect vocalizing marine mammals as an indicator of their presence. This system serves to augment the visual and active sonar detection systems, and is deployed and operated at all times in which the LFA sonar system could be utilized. If a passive acoustic technician detects a vocalizing marine mammal that may be potentially affected by LFA sonar prior to or during transmissions, the technician will notify the senior military member in charge who will immediately alert the HF/M3 active sonar operators and the lookouts. The senior military member in charge
Active acoustic monitoring uses the high-frequency marine mammal monitoring (HF/M3) sonar to detect, locate, and track marine mammals that could pass close enough to the SURTASS LFA sonar array to enter the 2,000-yd LFA sonar mitigation zone. HF/M3 acoustic monitoring may be used at all times of the day or night and begins 30 min before the first LFA sonar transmission of a given training or testing activity is scheduled to commence and continues until the Navy terminates LFA sonar transmissions.
If the HF/M3 sonar operator detects a marine mammal contact outside the 2,000-yd LFA sonar mitigation zone, the HF/M3 sonar operator will determine the range and projected track of the marine mammal. If the operator determines that the marine mammal will pass within the 2,000-yd LFA sonar mitigation zone, he/she will notify the senior military member in charge. The senior military member in charge will then immediately order the delay or suspension of LFA sonar training and testing transmissions when the animal is predicted to enter the 2,000-yd LFA sonar mitigation zone.
If the HF/M3 sonar operator detects a marine mammal within the 2,000-yd LFA mitigation zone, he/she will notify the senior military member in charge who will immediately order the delay or suspension of training and testing transmissions. The HF/M3 sonar operator will record all contacts of marine mammals into the log.
Prior to full-power operations of the HF/M3 active sonar during SURTASS LFA sonar training and testing activities, the Navy will ramp up the HF/M3 sonar power level over a period of 5 min from the source level of 180 dB re 1 μPa at 1 m in 10-dB increments until the HF/M3 system attains full power (if required) to ensure that there are no inadvertent exposures of marine mammals to received levels greater than 180 dB re 1 μPa rms from the HF/M3 sonar. The Navy will not increase the HF/M3 sonar source level if any of the three monitoring methods detects a marine mammal during ramp-up. Ramp-up of the HF/M3 active sonar may continue once marine mammals are no longer detected within the 2,000-yd LFA mitigation zone by any of the three monitoring methods.
In situations where the HF/M3 sonar system has been powered down for more than 2 min during a training and testing event, the Navy will ramp up the HF/M3 sonar power level over a period of 5 min from the source level of 180 dB re: 1 μPa at 1 m in 10-dB increments until the system attains full power.
Similar to the previously-required 1-km buffer around the LFA Sonar Mitigation Zone, NMFS is requiring the Navy to include a “buffer zone” that extends an additional 1 km (0.62 mi; 0.54 nm) beyond the seaward boundary of any OBIA (discussed in “Geographic Restrictions” section immediately below). The Navy has noted that this additional mitigation is practicable and has implemented this measure in previous authorizations. In addition, as noted above for the 180-dB mitigation zone, based on new scientific information and updated criteria in NMFS' 2018 Acoustic Technical Guidance, this 1-km buffer mitigation is more effective at avoiding PTS and reducing TTS than previously known when analyzed and employed in previous authorizations.
As noted above, the Navy will implement geographic restrictions for SURTASS LFA sonar training and testing activities that entail restricting SURTASS LFA sonar activities within these designated areas such that:
(a) The received level of SURTASS LFA sonar transmissions during training and testing events will not exceed 180 dB re: 1 μPa rms within 1 km seaward of any OBIA boundary, during the indicated periods of biological importance.
(b) No more than 25 percent of the authorized amount (transmission hours) of SURTASS LFA sonar for training and testing will be used within 10 nmi (18.5 km) of any single OBIA during any year (no more than 124 hours in years 1-4 and 148 hours in years 5-7) unless the following conditions are met: Should national security present a requirement to conduct more than 25 percent of authorized hours of SURTASS LFA sonar within 10 nmi (18.5 km) of any single OBIA during any year, naval units will obtain permission from the appropriate designated Command authority prior to commencement of the activity. The Navy will provide NMFS with notification as soon as is practicable and include the information (
(c) The received level of SURTASS LFA sonar transmissions will not exceed 180 dB re: 1 μPa rms within the Coastal Standoff Zone (22 km (12 nmi) from any land).
(d) No activities with the SURTASS LFA sonar system will occur within territorial seas of foreign nations, which are areas up to 12 nmi from shore, depending on the distance that individual nations claim.
(e) No activities with the SURTASS LFA sonar system will occur within the waters of Penguin Bank, Hawaii (defined as water depth of 600 ft (183 m)), and ensonification of Hawaii state waters (out to 3 nmi) will not exceed 145 dB re: 1 μPa rms.
As with previous rulemakings for SURTASS LFA sonar, this rulemaking contains a consideration of geographic restrictions, including OBIAs. However, whereas the Navy previously considered SURTASS LFA sonar activities worldwide, it has narrowed the geographic scope of its current application to reflect only those areas of the world's oceans where the Navy anticipates conducting covered SURTASS LFA sonar activities (
Given the unique operational characteristics of SURTASS LFA sonar, Navy and NMFS developed the concept of geographical restrictions for SURTASS LFA sonar in the SURTASS LFA Sonar FOEIS/EIS (DoN, 2001) to include: Delineating a 12 nmi coastal standoff zone where received levels from SURTASS LFA sonar will not exceed 180 dB re: 1 μPa rms, and designating OBIAs, where warranted, for areas beyond this coastal standoff zone, wherein received levels will not exceed 180 dB re: 1 μPa rms. The coastal standoff zone and OBIAs are intended to reduce the likelihood and/or degree of impacts on affected marine mammal species or stocks. As noted in the 2012 final rule (77 FR 50290; August 20, 2012), over 80 percent of the existing and potential marine protected areas reviewed were within 12 nmi from a coastline, indicating the effectiveness of the coastal standoff as one of the primary mitigation measures for
Three OBIAs were identified in the 2001 SURTASS LFA FOEIS/EIS: 200 m isobaths of the east coast of North America; Costa Rica Dome; and Antarctic Convergence Zone. In 2007, the Navy published a supplemental FEIS/FOEIS that designated six new OBIAs in addition to the three OBIAs that were designated in the 2001 SURTASS LFA FOEIS/FEIS. The criteria for identifying OBIAs in the 2001 and 2007 rules were originally defined in the 2001 SURTASS LFA Sonar FOEIS/EIS (Subchapter 2.3.2.1) as areas of the world's oceans outside of the geographic stand-off distance (greater than 22 km (12 nmi)) from a coastline (including islands) where marine animals of concern (those animals listed under the ESA and/or marine mammals) carry out biologically important activities, including migration, foraging, breeding, and calving.
For the 2012 rule, the Deputy Assistant Secretary of the Navy for Environment (DASN(E)) determined that the purpose of NEPA and Executive Order 12114 would be furthered by the preparation of an additional supplemental analysis related to the employment of SURTASS LFA sonar. Accordingly, the DASN(E) directed that an SEIS/SOEIS (among other things) provide further analysis of potential additional OBIAs in regions of the world where the Navy intended to use the SURTASS LFA sonar systems.
In parallel, for the 2012 rule, NMFS, with Navy input, developed a new process and screening criteria for determining an area's eligibility to be considered as an OBIA nominee for marine mammals. Those screening criteria were: (1) Areas with: (a) High densities of marine mammals; or (b) Known/defined critical habitat, breeding/calving grounds, foraging grounds, migration routes; or (c) Small, distinct populations of marine mammals with limited distributions; and (2) Areas that are outside of the coastal standoff distance and within potential operational areas for SURTASS LFA (
For the 2012 SURTASS LFA FSEIS/SOEIS and 2012 rule, NMFS also developed and implemented a robust, systematic screening process for reviewing existing and potential marine protected areas against the OBIA criteria, based on the World Database on Protected Areas (WDPA, 2009), Hoyt (2005), and prior SURTASS LFA sonar OBIAs. This process produced a preliminary list of 403 OBIA nominees. As noted above, and stated in the 2012 Final Rule (77 FR 50290; August 20, 2012), the vast majority of the areas reviewed as potential OBIAs were within 12 nmi from a coastline and therefore already afforded protection due to the coastal standoff zone, indicating the effectiveness of the coastal standoff zone as one of the primary mitigation measures for reducing potential impacts. The remaining areas were broadly evaluated under the OBIA criteria and, after review, 73 potential OBIAs were considered by the Navy and NMFS.
After the list of potential OBIAs was developed based on information at a broad scale, each of these areas was evaluated at a finer scale to determine whether they qualified for designation as an OBIA. Further analysis of the biological evidence and robustness of the data for each of these recommendations included ranking them in categories using a numbering system ranging from 0 to 4. Any of the nominees that received a ranking of 2 or higher were eligible for continued consideration as an OBIA nominee. A rank score of 2 for designation criteria or for OBIA boundary considerations indicated that the designation was inferred from habitat suitability models (non-peer reviewed), expert opinion, regional expertise, or “gray literature” (inferred from analyses conducted for purposes other than quantifying OBIA criteria or boundary; see DoN (2012), Section 4.5.2.1). Thus, even areas with somewhat limited data were eligible for further consideration as an OBIA.
The systematic process described here was developed in order to support an orderly and manageable expert review and to ensure some definable information quality in the identification of OBIAs. As a result of this process, 45 areas ranked a 2 or higher.
Although not part of the initial screening criteria for the 2012 rulemaking, consideration of marine mammal hearing frequency sensitivity led NMFS to screen out areas that qualified solely on the basis of their importance for mid- or high-frequency hearing specialists in past rulemakings. This was due to the fact that the LFA sound source is below the range of best hearing sensitivity for MF and HF odontocete hearing specialists. Using the example of harbor porpoises, this means that a sound with a frequency less than 1 kHz would need to be significantly louder (more than 50 dB louder) than a sound in their area of best sensitivity (around 100 kHz) in order for them to hear it. Additionally, during the 1997 to 1998 SURTASS LFA Sonar Low Frequency Sound Scientific Research Program (LFS SRP), numerous odontocete and pinniped species (
In addition to the considerations above, NMFS reviewed Hoyt (2011), which was an update and revision of Hoyt's 2005 earlier work, along with areas recommended in public comments received on the 2012 SURTASS LFA DSEIS/SOEIS. As a result of this further analysis, NMFS developed a list of OBIAs, which were then further considered in the context of practicability.
In response to public comments on the 2012 proposed rule, NMFS also
As part of the 2017 SURTASS LFA DSEIS/SOEIS, and as part of the 2017 rulemaking process, NMFS and Navy continued their evaluation of OBIAs. As a result of that work, NMFS and the Navy revised boundaries and designated seven more OBIAs, for a total of 29 OBIAs that were identified and made part of the NDE, under which the Navy is currently conducting SURTASS LFA sonar activities. Two of these OBIAs include protection for sperm whales (OBIA #28, Perth Canyon; and OBIA #29, Southwest Australia Canyons).
Since 2012, the Navy and NMFS have maintained an “OBIA Watchlist” of potential marine areas in the Study Area for which information or data have not been sufficient to designate as OBIAs, and reviewed new literature to determine if additional areas should be added to the list of potential areas. As part of the Adaptive Management process (see
For the 2019 SURTASS LFA FSEIS/SOEIS and this final rule, the following biological criteria, geographic criteria, and LF hearing sensitivity factors were considered in the identification of OBIAs:
•
•
•
The biological criteria considered in the identification of OBIAs have changed since the 2001 SURTASS LFA FOEIS/EIS (and as continued in the 2007 SURTASS LFA SEIS) in two respects. First, under the 2001 SURTASS LFA FOEIS/EIS, 2007 SURTASS LFA SEIS, and the 2007 final rule, an area could be designated as an OBIA only if it met a conjunctive test of being an area where marine mammals congregate (1) in high densities, and (2) for a biologically important purpose. The current scheme is more protective because any one of the biological criteria alone could be a sufficient basis for designation as an OBIA if it also meets the geographic criterion of falling outside of 12 nmi (22 km) from any coastline. Second, the current biological criteria now include “small, distinct
The 2017 NDE for SURTASS LFA sonar lists the 29 marine mammal OBIAs and their effective periods as geographic mitigation with which the Navy must comply for SURTASS LFA sonar activities. These OBIAs resulted from analyses conducted as part of the 2017 SURTASS LFA SEIS/SOEIS and application for rulemaking, and retained existing OBIAs; revised/expanded existing OBIAs; and added new OBIAs to those defined as part of the 2012 SURTASS LFA sonar rule (also see the 2019 SURTASS LFA FSEIS/SOEIS, Chapter 5, Section 5.3.6.2 and Appendix C for more detail on OBIAs). Of these 29 OBIAs, four are located within the current SURTASS LFA sonar Study Area (OBIA 16, Penguin Bank, Hawaiian Islands Humpback Whale NMS; OBIA 20, Northern Bay of Bengal and Head of Swatch-of-No-Ground; OBIA 26, Offshore Sri Lanka; and OBIA 27, Camden Sound/Kimberly Region), as indicated in Table 19, below.
Since the 2017 SURTASS LFA SEIS/SOEIS and NDE for SURTASS LFA sonar, analysis and assessment of marine areas as potential OBIAs has continued. The Navy and NMFS have conducted a comprehensive assessment of the available scientific literature, data, and information on potential marine areas in the SURTASS LFA Study Area to determine their potential as OBIAs. Because this rulemaking and the 2019 SURTASS LFA FSEIS/SOEIS have a narrowed geographic scope for SURTASS LFA sonar training and testing activities, review of OBIAs was similarly scoped to reflect only the current Study Area. Navy and NMFS' comprehensive assessment of marine areas as potential OBIAs included review of the OBIA Watchlist for areas located within the Study Area as well as a thorough review of the Important Marine Mammal Areas (IMMAs), Ecologically or Biologically Significant Marine Areas (EBSAs), IUCN Green List of Protected and Conserved Areas, as well as marine areas recommended in public comments on the 2019 SURTASS LFA DSEIS/SOEIS (see Chapter 7 of the 2019 SURTASS LFA FSEIS/SOEIS) and on our MMPA proposed rule (84 FR 7186; March 1, 2019). For this final rule, we have applied the OBIA biological criteria, geographic criteria, and hearing sensitivity factor, as well as the practicability criterion to the potential OBIAs. A summary of the number and types of marine areas assessed as potential OBIAs for SURTASS LFA sonar and their location relative to the Study Area and coastal standoff range (12 nmi) and relevancy for marine mammals is provided in Table 20. While we provide a summary of the OBIA analysis here, we direct the reader to Chapter 5 and Appendix C of the 2019 SURTASS LFA FSEIS/SOEIS for the complete analysis of all considered OBIA areas.
The British Indian Ocean Territory-Chagos Islands Marine MPA is a large MPA, and includes areas outside of the LFA coastal standoff range. All available literature and information were researched and reviewed; however, as was the case when this area was originally evaluated, very little information is available on the presence of marine mammals in the MPA (Dunne
Scientific information and data indicate that marine mammals occur in the waters of all the MNMs on the OBIA Watchlist. Scientific data and information on important biological activities conducted by marine mammal species were most available for the Papahānaumokuākea MNM, where the majority of the very small population of the ESA-listed endangered Hawaiian monk seal resides, reproduces, and forages, and where critical habitat for
All areas designated as IMMAs located in the Study Area were assessed as potential OBIAs. Twenty-three IMMAs are located in the study area for SURTASS LFA sonar (see detailed maps and summary assessment tables in Appendix C of the 2019 SURTASS LFA FSEIS/SOEIS). Of the 15 Pacific Islands IMMAs, three are located within the SURTASS LFA sonar Study Area in the North Pacific Ocean: The Northwest Hawaiian Islands, Main Hawaiian Archipelago, and Southern Shelf Waters/Slope Edge of Palau. However, only the Northwest Hawaiian Islands and Main Hawaiian Archipelago IMMAs have some part of their area located outside the coastal standoff zone for SURTASS LFA sonar; the geographic extent of the Palau IMMA is entirely located within the coastal standoff range for SURTASS LFA sonar and therefore does not meet the geographic criteria for consideration as an OBIA. Sufficient information and data were available to support designation of OBIAs in the waters of the Northwestern Hawaiian Islands and the Main Hawaiian Archipelago IMMAs (for a detailed analysis of these areas see Appendix C of the 2019 SURTASS LFA FSEIS/SOEIS).
Thirty IMMAs were designated in the North East Indian Ocean and South East Asian Seas (MMPATF, 2019) (see detailed maps and summary assessment tables in Appendix C of the 2019 SURTASS LFA FSEIS/SOEIS). Of these 30 IMMAs, 20 are located at least partially within the SURTASS LFA Study Area, with nine of these located at least partially outside of the coastal standoff zone. Additionally, one was only relevant to inshore species. Eight of the North East Indian Ocean and South East Asian IMMAs were carried forward for additional assessment as potential OBIAs.
During the assessment, marine areas were combined if they were designated for the same geographic area (
Above, we describe a comprehensive process and set of criteria for identifying OBIAs, which, when used in conjunction with the limits on SURTASS LFA sonar transmission levels in and around them described above, we expect to decrease the likelihood and/or scale of impacts on marine mammal species or stocks. However, the inclusion of this focused and systematic process and criteria for designating OBIAs does not mean that other mitigation, including specific time/area restrictions, could not be considered in the context of the LPAI standard. Below we address some other factors that NMFS and the Navy considered in the development of the final rule.
Under section 7 of the ESA, all Federal agencies must ensure that any actions they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or destroy or adversely modify its designated critical habitat. ESA-designated critical habitat is not designated in foreign countries or any other areas outside of U.S. jurisdiction. Critical habitat within the U.S. EEZ implicated by SURTASS LFA sonar activities has been designated for two of the relevant ESA-listed marine mammal species, Hawaiian monk seals and the Main Hawaiian Island (MHI) Insular DPS of false killer whales. Effects to ESA-designated critical habitat are explicitly addressed through the section 7 consultation process under the ESA. Notably, the ESA biological opinion for the Navy's SURTASS LFA sonar activities and this MMPA rule concludes that they are not likely to adversely affect the relevant designated critical habitat for those species.
Some of the characteristics of ESA-designated critical habitat are also germane to the identification of OBIAs or other mitigation under this rulemaking. However, critical habitat also considers physical as well as biological features and may also consider areas that are currently unoccupied by the species. Therefore, not all critical habitat necessarily qualifies as an OBIA or is appropriate as a basis for other time/area restrictions for SURTASS LFA sonar when considering mitigation under the MMPA. As it pertains to the potential inclusion of these areas as OBIAs, we note that neither of these two ESA-listed species is a LF hearing specialist or sensitive to SURTASS LFA sonar in a manner that would otherwise justify additional species-specific mitigation on their behalf, given the existing protections of the Navy's three-part detection and shutdown protocols and coastal standoff zone.
Nearly all of the ESA-designated critical habitat for the Hawaiian monk seal lies within the coastal standoff distance for SURTASS LFA sonar. A small area of the monk seal's critical habitat at Penguin Bank extends beyond the 22-km (12-nmi) coastal standoff distance, which is part of the Main Hawaiian Islands OBIA (designated in this final rule). Per the CZMA consultation with the State of Hawaii for SURTASS LFA sonar, the Navy agreed not to operate SURTASS LFA sonar in the waters of Penguin Bank to the 600-ft (183-m) isobath. In addition, the Navy also agreed not to ensonify Hawaii state waters at levels above 145 dB re: 1 μPa rms. Main Hawaiian Islands and Northwestern Hawaiian Islands OBIAs (designated in this final rule), effective from November to April and December to April, respectively, encompass the critical habitat for Hawaiian monk seal. During this time, the received levels in waters within 1 km of these OBIAs will not exceed 180 dB re: 1 μPa (rms).
The ESA-designated critical habitat for the MHI insular false killer whale (MHI IFKW) DPS includes waters from the 148- to 10,499-ft (45-to 3,200-m) depth contours around the MHI from Niihau east to Hawaii. MHI IFKWs are island-associated whales that rely entirely on the productive submerged habitat of the main Hawaiian Islands to support all of their life-history stages, and their range is restricted to the shelf and slope habitat around the MHI, unlike pelagic false killer whales found more in open oceans. Because of the habitat characteristics that are important components to the ecology of these whales, NMFS identified a single feature, island-associated marine habitat, with four characteristics that support this feature as essential to their conservation. The four characteristics include: (1) Adequate space for movement and use within shelf and slope habitat; (2) prey species of sufficient quantity, quality, and availability to support individual growth, reproduction, and development, as well as overall population growth; (3) waters free of pollutants of a type and amount harmful to MHI IFKWs; and (4) sound levels that will not significantly impair the whales' use or occupancy.
Some Navy and other Federal agency areas, such as the Pacific Missile Range Facility offshore ranges, are excluded from the critical habitat designation (NOAA, 2018). In most areas of the waters surrounding the MHI, the coastal standoff range for SURTASS LFA (12 nmi (22 km)) is located closer to shore than the seaward boundary of the critical habitat for the MHI Insular DPS of the false killer whale (
Regarding prey availability (large pelagic fish and squid) of sufficient quantity, quality, and availability to support individual growth, reproduction, and development, as well as overall population growth of false killer whales, no mortality of marine invertebrates is reasonably expected to occur from exposure to LFA sonar training and testing activities nor are population level effects likely. Thus, marine invertebrates such as squid would not reasonably be adversely affected by SURTASS LFA sonar training and testing activities such that their availability (or other prey availability) would be diminished (also refer to Chapter 3, section 3.4.2.1 of the 2019 SURTASS LFA FSEIS/SOEIS for a discussion of why marine invertebrates are not reasonably likely to be adversely impacted by SURTASS LFA sonar training and testing activities). Marine fishes, however, may be affected by exposure to LFA sonar transmissions, but only if they are located within close proximity (<0.54 nmi (<1 km)) to the transmitting sonar source. The Navy's analysis indicates a minimal to negligible potential for an individual fish to experience non-auditory or auditory effects or a stress response from exposure to SURTASS LFA sonar transmissions. A low potential exists for minor, temporary behavioral responses or masking effects to an individual fish when LFA sonar is transmitting, but no potential is estimated for fitness level consequences to fish stocks. Since it is highly unlikely that a significant percentage of any prey stock would be in sufficient proximity during LFA sonar transmissions to experience such effects, there is minimal potential for LFA sonar to affect prey fish stocks. Thus, no adverse effects are reasonably expected on the quantity, quality, and availability of prey fishes as the result of exposure to SURTASS LFA sonar training and testing activities. Accordingly, SURTASS LFA sonar training and testing activities would not significantly impact the biological characteristics of prey availability of the MHI IFKW DPS's designated critical habitat.
Regarding the underwater sound produced by SURTASS LFA sonar, it would not be expected to “significantly impair false killer whale's use or occupancy” due both to the small scale of the activity (small number of vessels operating across two ocean basins, meaning that any individual marine mammal would be expected to be exposed for only a short amount of time) and the frequency of the SURTASS signal, which is not in the range of
Both the Navy and NMFS Protected Resources Permits and Conservation Division consulted with NMFS Protected Resources Interagency Cooperation Division on effects on critical habitat pursuant to section 7 of the ESA.
The Navy will restrict training and testing activities utilizing SURTASS LFA sonar within 22 km (14 mi; 12 nmi) of any coastline, including islands, such that the SURTASS LFA sonar-generated sound field will not exceed a received level of 180 dB re: 1 μPa rms at that seaward distance. This measure is intended to minimize both the severity and scale of effects to marine mammals and, by extension, marine mammal species and stocks, by avoiding areas where many biologically important behaviors and higher densities of many species that may be found in coastal areas occur. In the past, some commenters have recommended the Navy implement a larger coastal standoff zone than what we proposed. We reiterate that as noted in 2012 final rule (77 FR 50290; August 20, 2012), approximately 80 percent of known and potential marine protected areas are within the 22 km (12 nmi) coastal standoff zone, an indication of this measure's effectiveness, and it is practicable. Additionally, this restriction limits exposures of marine mammals to high-level sounds in the vicinity of geographical features that have been associated with some stranding events (
The Navy's 2007 SURTASS LFA SEIS/SOEIS evaluated increasing the coastal standoff distance up to 46 km (25 nmi) and, based on a six-step analysis process, determined that increasing the coastal standoff range would decrease exposure to higher received levels for concentrations of marine animals closest to shore, but would do so at the expense of increasing exposure levels for shelf break and pelagic species. There have been no changes to the best available information or other indications that the coastal standoff distance should be increased, so there is no change in this mitigation measure from previous rulemakings. In addition, any areas beyond the 12 nmi coastal standoff can still be considered for mitigation, such as through the OBIA process.
As described earlier, for the 2012 rulemaking, NMFS convened a panel of subject matter experts (SMEs) to help identify marine mammal OBIAs relevant to the Navy's use of SURTASS LFA sonar. Separately, we consulted a NMFS scientist, who was also on that same SME panel, to help address a recommendation in a public comment that NMFS consider a global habitat model (Kaschner
As requested, the White Paper authors reviewed the Kaschner
Specifically, the White Paper illustrated that the Kaschner
In
However, the recommendations of the White Paper present a dichotomous “precautionary versus non-precautionary” choice, an interpretation that fails to consider the context of the requirements of the MMPA, the nature of the anticipated effects of the action at issue, and the other mitigation measures. More appropriately, NMFS has fully and independently considered each of the White Paper's three recommendations in the context of the MMPA's LPAI standard, as described below. In that analysis, we first note the small scale of the anticipated effects of the Navy's request for authorization (496-592 hours/year of SURTASS LFA sonar spread across two ocean basins) and the low magnitude and severity of impacts expected to any individual marine mammals (relatively short-term exposures given the spatial scale of the vessels' movement), even in the absence of mitigation, given the nature of the activities. Then we note the robust shutdown measures that utilize the highly effective visual, passive acoustic, and active acoustic detection methods that are in place for all areas and times to avoid marine mammal injury as well as minimize TTS and more severe behavioral responses, belying claims that we treat data-poor areas as though they are equivalent to zero-density areas or areas of no biological importance. Next, we discuss the coastal standoff zone, which minimizes take of many species with coastal habitat preferences. We then examine the activity restrictions in OBIAs, which further limit potentially more significant impacts in areas that are known to be biologically important to the species that are more susceptible to the SURTASS LFA sonar signal. Finally, we discuss the limited and uncertain additional protective value that the White Paper recommendations would be expected to provide for marine mammal individuals, much less species or stocks. After considering all of this information, in addition to the information provided by the Navy indicating that further restricting SURTASS LFA sonar training and testing in the areas recommended in the White Paper would be impracticable, NMFS determined that the use of the White Paper recommendations was not appropriate.
While the White Paper authors essentially disqualified the specific extrapolative predictive results of the Kaschner model based on validating them against known data, they nevertheless recommended broader protections based on fewer environmental variables, to be used if NMFS determined that a “precautionary approach” was appropriate. Although the current White Paper recommendations are grounded in some sound broad ecological principles, basing mitigation on the “precautionary approach” considered by the White Paper authors suffers from some of the same types of weaknesses as using the Kaschner model or other “environmental envelope” approaches. In the 2012 SURTASS LFA sonar rule, NMFS evaluated the White Paper solely through the lens of the OBIA process, and determined that the recommendations presented were not appropriate for identification of OBIAs, which may have limited fuller consideration of the recommendation. For this rulemaking, NMFS independently examined the White Paper's specific recommendations in the context of the LPAI standard to determine whether following those recommendations is warranted to minimize the impacts from SURTASS LFA sonar training and testing activities on the affected marine mammal species or stocks. This consideration was done outside of the OBIA designation process, and is consistent with the consideration of the LPAI criteria described above when determining appropriateness of mitigation measures. The White Paper recommended the following general guidelines based on ecological principles to identify areas of biological importance for cetaceans:
(1) Designation of all continental shelf waters and waters 100 km seaward of the continental slope as biologically important habitat for marine mammals;
(2) Establishment of OBIAs within 100 km of all islands and seamounts that rise within 500 m of the surface; and
(3) Nomination of high productivity regions that are not included in the continental shelf, continental slope, seamount, and island ecosystems above as biologically important areas.
These recommendations were evaluated (see below) in the context of the proposed SURTASS LFA sonar training and testing activities and the mitigation measures proposed to be implemented to minimize impacts on the affected marine mammal species or stocks from these activities.
To reiterate, NMFS has required several mitigation measures for SURTASS LFA training and testing sonar activities that: (1) Minimize or alleviate the likelihood of injury (PTS), TTS, and more severe behavioral responses (the 2,000-yd LFA mitigation/buffer zone); (2) additionally minimize or avoid behavioral impacts in known important areas (which includes important habitat) that would have a higher potential to have negative energetic effects or deleterious effects on reproduction that could reduce the likelihood of survival or reproductive success (OBIAs); and (3) generally lessen the total number of takes of many species with coastal or shelf habitat preferences (coastal standoff). The nature and context of how LFA sonar is used in training and testing activities (small number of vessels operating in open ocean areas and typically using active sonar only sporadically) is such that impacts to any individual are expected to be limited primarily because of the short duration of exposure to any individual mammal. In addition, as explained above, an animal would need to be fairly close to the source for the entire length of a transmission (60 sec) to experience injury, and exposures occur in open water areas where animals can more readily avoid the source and find alternate habitat relatively easily. In addition, highly effective mitigation measures would be implemented that further ensure impacts are limited to lower-level responses with limited potential to significantly alter natural behavior patterns in ways that would affect the fitness of individuals and by extension the affected species or stocks.
SURTASS LFA sonar operates from 100 to 500 Hz. These frequencies are far below the best hearing sensitivity for MF and HF species. HF species have
As described in the 2012 rule, NMFS believes that MF and HF odontocete hearing specialists have such reduced sensitivity to the LFA sonar source that limiting ensonification in OBIAs for those animals would not afford meaningful protection beyond that which is already incurred by implementing a shutdown when any marine mammal enters the 2,000-yd LFA sonar mitigation zone. For the same reason, our discussion of the White Paper recommendations is limited to low frequency sensitive species. We note the White Paper's recommendations for mitigation in data-poor areas similarly were solely for cetaceans.
As noted previously, in evaluating mitigation for species or stocks and their habitat, we consider the expected benefits of the mitigation measures for the species or stocks and their habitats against the practicability of implementation. This consideration includes assessing the manner in which, and the degree to which, the implementation of the measure(s) is expected to reduce impacts to marine mammal species or stocks (including through consideration of expected reduced impacts on individuals), their habitat, and their availability for subsistence uses (where relevant). This analysis will consider such things as the nature of the proposed activity's adverse impact (likelihood, scope, range); the likelihood that the measure will be effective if implemented; the likelihood of successful implementation. Practicability of implementing the measure is also assessed and may involve consideration of such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity (16 U.S.C. 1371(a)(5)(A)(ii)).
Taking into account the above considerations, NMFS' evaluation of the White Paper's recommendations is described below:
Continental shelf waters and waters 100 km seaward of continental slope
In support of understanding the additional value of expanding this standoff to 100 km beyond the continental slope margin, NMFS assessed known marine mammal density information for low frequency hearing specialists from the U.S. East (Roberts
As stated above, NMFS looked at these areas because relatively more data are available and, since comparisons in these areas do not consistently show strong correlation of high densities with the continental slope, it is reasonable to infer the same inconsistent relationship
We said in the OBIA context that although we are identifying “known” biologically important areas, other biologically important areas have yet to be identified, due to limited data. However, it is important to realize that much more research is conducted close to shore, in the United States and internationally, and typically areas within 100 km of the slope are less likely to be data-poor compared to other areas. In areas where there is extensive data on marine mammal density and use (
NMFS acknowledges that large ocean areas such as the continental shelf and slope and seamounts may include habitat features that could provide important habitat for marine mammals at certain times—as the White Paper states, the higher primary productivity in these areas could generally be associated with higher densities of marine mammals. However, exposures to any individual animal are expected to be short term and intermittent, since a small number of ships would conduct SURTASS LFA sonar training and testing activities for up to 496 hours (years 1-4) and 592 hours (years 5-7) total for all ships combined annually. In addition, shutdown measures would avoid injury (PTS), most TTS, and severe behavioral responses, and coastal standoff zones and OBIAs would avoid disturbances more likely to lead to fitness impacts by further restricting activities in these areas of known biological importance for marine mammals. Therefore, the other mitigation measures (which are currently in effect) would already limit most take of marine mammals to less severe Level B harassment (
Of note, in many areas the waters of the continental shelf/slope will be afforded significant protection due to the coastal standoff mitigation measure. In addition, review of designated OBIAs reveals that the majority include continental shelf/slope areas and similar coastal waters. The Navy will also transmit no more than 25 percent of the authorized amount (transmission hours) of SURTASS LFA sonar for training and testing activities within 10 nmi (18.5 km) of any single OBIA during any year (no more than 124 hours in years 1-4 and 148 hours in years 5-7). Therefore, to the extent that some portion of the shelf/slope waters are important habitats, many are afforded protection due to the geographical restrictions already in place (coastal standoff and OBIAs), and NMFS has determined that the best available information justifies these measures under our evaluation framework set forth above.
Given the proposed mitigation measures, many of which are already in place under the NDE and have been in effect for many years under prior rules, takes of marine mammals would be limited to Level B harassment in the less severe range of behavioral reactions and some TTS, as described above. Consequently, the only additional anticipated value to restricting activities in continental shelf waters and waters 100 km seaward of continental slope would be some, though not a significant, reduction in the number of these less severe behavioral reactions in those areas. As discussed above, in general, not all behavioral responses rise to the level of a take and not all harassment takes result in fitness consequences to individuals that have the potential to translate to population consequences to the species or stock. For example, the energetic costs of short-term intermittent exposures to SURTASS LFA sonar (such as are expected here) would be unlikely to affect the reproductive success or survivorship of individuals. This means there is little to no likelihood that the impacts of the anticipated takes would accrue in a manner that would impact a species or stock even in the absence of any additional mitigation. Therefore, considered with the uncertain potential of this proposed recommendation to provide meaningful incremental reduction of risk or severity of impacts to individual marine mammals, NMFS concludes that this recommendation would not reasonably be expected to provide a reduction in the probability or degree of effects on any marine mammal species or stocks.
In addition to the mitigation measures in place for SURTASS LFA sonar that would already provide protection for continental shelf/slope waters, it is important to note that there are currently a total of four SURTASS LFA sonar ships that would be training and testing with up to a maximum of 496 transmission hours total, pooled across all vessels, per year in years one through four. While the Navy plans to add additional vessels beginning in year 5, the total transmission hours would be capped at 592 hours total, regardless of the number of vessels. It is not known, nor does the Navy indicate in its plans, whether activities of these existing or proposed new vessels would be focused in any specific area. It is likely, based on past monitoring reports, that the activities of the multiple vessels are spatially separated and not concentrated in a single area, and that they would not necessarily overlap marine mammal high-density areas for an extended period of time. However, as noted, the Navy will transmit no more than 25 percent of the authorized amount (transmission hours) of SURTASS LFA sonar for training and testing activities within 10 nmi (18.5 km) of any single OBIA during any year, which means no more than 124 hours in years 1-4 and 148 hours in years 5-7.
The submarine forces of several key adversaries are rapidly growing in size, capability, and geographic reach. Due to advancements in quieting technologies in diesel-electric and nuclear submarines, undersea threats are becoming increasingly difficult to locate using traditional passive acoustic technologies. Submarines from many nations are now much more capable and able to stay submerged for a longer period of time than earlier vessels. For both conventional diesel-electric and nuclear submarines, quieting technology has increased stealth and thus operational effectiveness. These technologies include air-independent propulsion (AIP), hull coatings that minimize echoes, sound isolation mounts for machinery, and improved propeller design. What once were unique U.S. design capabilities are now being employed in new submarine projects and as upgrades to older submarines throughout potential adversaries' navies. As this technology has improved, the predominant sources of ship noise (for example propeller noise or other machinery noise) have been reduced. Passive sonar involves listening for sounds emitted by a potentially hostile submarine in order to detect, localize, and track it. As submarines become quieter through improved sound dampening technology and innovative propeller design, the usefulness of passive sonar systems has greatly diminished. These submarines have the ability to carry many different weapons systems, including torpedoes, long-range anti-ship cruise missiles, anti-helicopter missiles, anti-ship mines, and ballistic nuclear missiles. These capabilities make submarines, both nuclear and diesel-electric powered, stealthy and flexible strategic threats.
The destruction of U.S. Carrier Strike Groups (CSGs) and Expeditionary Strike Groups (ESGs) is a focal point in the naval warfare doctrine of many adversaries' navies. The main threat that a carrier strike group must defend against is the undersea threat from enemy submarines. A single diesel-electric submarine that is capable of penetrating U.S. or multinational task force defenses could cause catastrophic damage to those forces, and jeopardize the lives of thousands of sailors and Marines onboard Navy ships. Even the threat of the presence of a quiet diesel submarine could effectively deny or delay U.S. or coalition naval forces access to vital operational areas. Long-range detection of threat submarines in near-shore and open ocean environments is critical for this effort.
Adequate and effective training and testing with SURTASS LFA sonar is necessary to ensure crews can operationally detect these quieter and harder to-find foreign submarines at greater distances. The Navy has indicated that if large areas of the continental shelf or slope were restricted beyond what is in the 12nmi/22km coastal standoff, the Navy would not have the benefit of being able to train and test in these challenging environments. Coastal, shallow environments are more acoustically complex and the SURTASS LFA system was designed to penetrate these environments to find quiet assets that may use these distinctive geographic features to their advantage. Year-round access to all of these areas of challenging topography and bathymetry is necessary so that crews learn how the SURTASS LFA system will operate amidst changing oceanographic conditions, including seasonal variations that occur in sound propagation.
Because these assets are forward deployed and can rapidly switch between training and testing activities and operational missions, there is limited flexibility for these ships to maneuver any substantial distance from primary mission areas of responsibility. Therefore, avoiding continental shelf and slope waters plus a 100 km buffer for training and testing activities would constitute a significant deviation in their staging requirements for other missions. Thus, implementing this mitigation measure would be highly impracticable and would significantly adversely affect the availability of these assets to conduct their national security mission. Additionally, due to the slow speed at which these vessels transit (3 to 4 knots when towing SURTASS, 10-12 knots without) it does not allow for large scale movements on the orders of 100s of km proposed by the mitigation scheme of the White Paper to avoid a 100 km buffer around continental shelf and slope habitat.
Regarding seamounts, Morato
Along the northeastern U.S. continental shelf, cetaceans tend to frequent regions based on food preferences (
As discussed previously with respect to a 100 km buffer around continental shelf and slope habitat, similar practicability concerns exist with implementing a 100 km buffer around all islands and seamounts. Because these assets are forward deployed and can rapidly switch between training and testing activities and operational missions, there is limited flexibility for these ships to maneuver any substantial distance from their primary mission areas of responsibility. Since seamounts and other areas of complex bathymetry are important training/testing features avoiding these areas would have negative impacts on training and testing preparedness and realism. Additionally, avoiding island associated and sea mount habitats by 100 km would constitute a significant deviation in the staging of these assets for other missions and would significantly impacting their potential for these vessels to conduct operational missions. Lastly, due to the slow speed at which these vessels transit (3 to 4 kt when towing SURTASS, 10-12 kt without) it does not allow for large scale movements on the orders of a 100 km proposed by the mitigation scheme of the White Paper without requiring extensive transmit time on and off station that would reduce training and testing opportunities and the ability of these assets to support other national security missions required of them.
Areas of more moderate productivity are typically very large, which means that they are not concentrating high densities or feeding areas throughout their area. In fact, areas of moderate productivity scored within the mean and thus represent “average” habitat and would not necessarily be biologically important. These moderately productive habitats are likely to provide ample alternative opportunities for species to move into and take advantage of areas should they avoid the area around the SURTASS LFA sonar vessel. Additionally, as noted above, given the nature of SURTASS LFA sonar activities and the other mitigation for SURTASS LFA sonar, the existing risk to marine mammal species and stocks is low and is limited to less severe Level B harassment.
NMFS has considered the White Paper recommendations and acknowledges that some of them have the potential to reduce the numbers of take for some individual marine mammals within a limited number of
Based on our evaluation of the Navy's proposed mitigation measures as well as other measures considered by NMFS or recommended by the public, NMFS has determined that the mitigation measures required by this final rule provide the means of effecting the least practicable adverse impact on the affected species or stock(s) of marine mammals and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, considering personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
The 2,000-yd LFA sonar mitigation (shutdown) zone, based on detection of marine mammals from the highly effective three-part mitigation monitoring efforts (visual, as well as active and passive acoustic monitoring), and geographic restrictions (coastal standoff zone and OBIAs plus the 1-km buffer as well as the limitation on transmission hours near OBIAs except when additional approval is obtained from the Navy Command authority if required for national security) will enable the Navy to: (1) Avoid Level A harassment of marine mammals; (2) minimize the incidences of marine mammals exposed to SURTASS LFA sonar sound levels associated with TTS and more severe behavioral effects under Level B harassment; and (3) minimize marine mammal takes in areas and during times of important behaviors such as feeding, migrating, calving, or breeding or in areas where small resident populations reside or there is high density, further minimizing the likelihood of adverse impacts to species or stocks.
The SURTASS LFA sonar signal is not expected to cause mortality, serious injury, or PTS, due to implementation of the 2,000-yd LFA sonar mitigation zone, which will ensure that no marine mammals are exposed to an SPL greater than about 174 dB re: 1 µPa rms. As discussed above, a low-frequency cetacean would need to remain within 41 meters (135 ft) for an entire LFA sonar transmission (60 sec) to potentially experience PTS and within 413 m (1,345 ft) for an entire LFA sonar transmission (60 sec) to potentially experience TTS, which would be unlikely given typical avoidance behaviors even in the absence of mitigation. Therefore, in addition to alleviating the likelihood of PTS, the implementation of the 2,000-yd LFA sonar shutdown zone mitigation measure will minimize the number of LF cetaceans likely exposed to LFA sonar at levels associated with the onset of TTS. The best information available indicates that effects from SPLs less than 180 dB re: 1 µPa rms will be limited to short-term, Level B harassment, and animals are expected to return to behaviors shortly after exposure.
Further, the implementation of OBIA measures and the coastal standoff allows the Navy to minimize or avoid impacts in areas where behavioral disturbance and other impacts would be more likely to have negative energetic effects, or deleterious effects on reproduction, which could reduce the likelihood of survival or reproductive success (measures to avoid or lessen exposures of marine mammals within the coastal standoff zone and OBIAs); and generally lessen the total number of takes in areas of higher density for some species (coastal standoff measures and OBIAs). These measures, taken together, constitute the means of effecting the least practicable adverse impact on the affected species and stocks in the western and central North Pacific and eastern Indian Oceans in the upcoming seven-year LOA period. As described above, we evaluated the potential inclusion of additional measures (White Paper recommendations, critical habitat, etc.) before reaching this conclusion.
The 2019 SURTASS LFA FSEIS/SOEIS evaluated the potential for impacts to marine habitats (marine mammals and otherwise) from SURTASS LFA sonar training and testing activities including critical habitat, essential fish habitat, marine protected areas, and national marine sanctuaries. SURTASS LFA sonar training and testing activities involve introduction of pressure and sound in the water column but will not alter physical habitat. Marine mammal prey will not be exposed to sustained duration and intensity of sound levels that would be expected to result in significant adverse effects to marine mammal food resources. Habitat impacts were considered within the context of the addition of sound energy to the marine environment while SURTASS LFA sonar is transmitting, which represents a vanishingly small percentage of the overall annual underwater acoustic energy budget that would not affect the ambient noise environment of marine habitats (refer to Chapter 4, Sections 4.4 and 4.5 of the 2019 SURTASS LFA FSEIS/SOEIS). Therefore, with regard to habitat, NMFS has not identified any impacts to habitat from SURTASS LFA sonar that persist beyond the time and space that the impacts to marine mammals themselves and the water column could occur. Our mitigation targeted to minimize impacts to species or stocks while in particular habitats (
The Ninth Circuit's
In reaching the conclusion that NMFS' record for the 2012 rule did not establish the agency had satisfied the LPAI standard, the Court in
We first emphasize that NMFS' OBIA informational standards (and other mitigation measures), while data-driven, do not require scientific certainty or conclusive data. This is illustrated by the fact that the OBIA screening criteria allow for consideration of a variety of information sources, including historic whaling data, stranding data, sightings information, and regional expertise, to name a few examples of the “data” considered—and, in fact, the only areas that were not considered were those considered to have entirely inconclusive data. As detailed further in Appendix D of the 2012 SURTASS LFA SEIS/SOEIS, supporting documents that are considered include peer-reviewed articles; scientific committee reports; cruise reports and transects; personal communications and unpublished reports; dissertations and theses; books, government reports, and non-governmental organization reports; and notes, abstracts, and conference proceedings. The process set up for the 2012 rule carried forward areas for consideration if they had sufficient scientific support for the relevant criterion based on a ranking of 2 or higher on a scale developed for that purpose, with zero being the lowest and four the highest. Even areas that were ranked “2” (“
In fact, NMFS has previously designated OBIAs for areas based on these types of information sources. For example, the Olympic Coast OBIA (OBIA 21) had a ranking of 2 for foraging by humpback whales as documented in one peer-reviewed report (p.D-319, DoN 2012). Based on the results of that study, the Olympic Coast OBIA was reviewed and designated. Other examples include the Southwest Australia Canyons OBIA, which considers past whaling data but also more recent sighting and stranding information; and the boundary for the Eastern Gulf of Mexico OBIA, which was drawn to “conservatively encompass” waters where Bryde's whales may occur based on sightings information (as opposed to scientific validation of their occurrence). In addition, even though most available data are only available for inshore waters (within the coastal standoff zone), NMFS is designating OBIAs for the Ogasawara Island region as part of this rulemaking due to the importance of the nearshore area for humpback whales and sperm whales.
Thus, NMFS does not insist on an “unattainable” evidentiary standard of “conclusive data”
Finally, because the LPAI standard authorizes NMFS to weigh a variety of factors when evaluating appropriate mitigation measures, it does not compel mitigation for every kind of individual take, even when practicable for implementation by the applicant. Thus, we do not evaluate measures strictly on the basis of whether they will reduce
NMFS has evaluated the likely effects of SURTASS LFA sonar training and testing activities and has required measures to minimize the impacts to the affected species or stocks and their habitat to achieve the LPAI. Consistent with our interpretation of LPAI, the LFA shutdown and coastal exclusion zone are practicable for the Navy and effective in minimizing impacts on marine mammals from activities that are likely to increase the probability or severity of population level effects—
We have assessed all recommendations and the best available science and are aware of no other practicable measures that would further reduce the probability of impacts to species or stocks and their habitats. In other words, the measures that NMFS includes in this rule will effect the least practicable adverse impact on the affected species or stocks and their habitats. As discussed in the
Section 101(a)(5)(A) of the MMPA states that in order to issue an ITA for an activity, NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing
Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:
• An increase in our understanding of how many marine mammals are likely to be exposed to levels of LFA sonar that we associate with specific adverse effects, such as disruption of behavioral patterns, TTS, or PTS;
• An increase in our understanding of how individual marine mammals respond (behaviorally or physiologically) to LFA sonar (at specific received levels or other stimuli expected to result in take);
• An increase in our understanding of how anticipated takes of 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);
• An increase in knowledge of the affected species;
• An increase in our understanding of the effectiveness of certain mitigation and monitoring measures;
• A better understanding and record of the manner in which the authorized entity complies with the incidental take authorization; and
• An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general to better achieve the above goals.
In addition to the real-time monitoring associated with mitigation, the Navy is engaging in exploring other monitoring efforts described here:
Beginning in 1993, the Marine Mammal Monitoring (M3) Program was designed to assess the feasibility of detecting and tracking marine mammals. The M3 program uses the Navy's fixed and mobile passive acoustic monitoring systems to monitor the movements of some large cetaceans (principally baleen whales), including their migration and feeding patterns, by tracking them through their vocalizations. This Program has evolved into a valuable tool by which the acoustic activity levels of vocalizing whales can be quantitatively documented and trends of oceanic ocean noise levels measured over ecologically meaningful ocean scales and time periods under varying noise conditions.
As part of the research and monitoring component of the SURTASS LFA sonar program, M3 data are collected to:
• Document occurrence, distribution, and behaviors of acoustically active whale species over ocean basin and decadal scales;
• Assess changes in marine mammal activity levels under normal conditions (
• Inform environmental assessments of current and future anti-submarine warfare systems; and
• Assemble a long-term database of ocean ambient noise data to enable scientifically-based evaluations of potential influences on cetaceans or other species.
Acoustic data collected and archived by the M3 program allow program analysts to statistically quantify how cetacean acoustic behaviors are affected by various factors, such as ocean basin topographic features, hydrographic conditions, seasonality, time, weather conditions, and ambient noise conditions. The compiled acoustic data can be used to estimate the total number of vocalizing whales per unit area as well as document the seasonal or localized movements of individual animals. In addition, observations over time can also show the interaction and influence of noise sources on large whale behavior.
At present, the M3 Program's data are classified, as are the data reports created by M3 Program analysts, due to the inclusion of sensitive national security information. The Navy continues to assess and analyze M3 Program data collected from Navy passive acoustic monitoring systems and is working toward making some portion of that data (after appropriate security reviews) available to scientists with appropriate clearances and ultimately to the public. Additionally, data summaries are shared with NMFS analysts with appropriate clearances. There has been some progress on addressing security concerns and declassifying a report of fin whale singing and swimming behaviors (DoN, 2015; Clark
Due to research indicating that beaked whales and harbor porpoises may be particularly sensitive to a range of underwater sound (Southall
In summary, after consideration of the SAG recommendations and the inputs provided by the EOG, the research monitoring studies were ranked as follows. In addition to the topic, the approximate cost of the research effort is also listed. Those study topics which the Navy has invested in since the EOG recommendations are also indicated below.
The category of research recommendations that were ranked
1. Desktop study of potential overlap of harbor porpoise habitat by SURTASS LFA sonar transmissions. The Navy funded this study and the report has been submitted to NMFS. In summary the report finds that, while harbor porpoises could potentially be exposed to SURTASS LFA sonar transmissions, exposure is likely to occur at reduced sound levels with limited potential for behavioral responses. The full report is available at
2. Review of existing high frequency acoustic recording package (HARP) data to determine spatiotemporal overlap with SURTASS LFA missions. NMFS consulted with scientists at NOAA's Pacific Islands Fisheries Science Center about deployments in the western and central North Pacific and Scripps Institution of Oceanography about deployments in the eastern North Pacific. Since the EOG, Baumann-Pickering
The second-highest ranked group of recommendations consisted of studies that are estimated to cost in the $100,000-$500,000 range, but for which methodologies exist and implementation would extend existing studies.
1. Targeted deployment of one HARP sensor in the western North Pacific for one year; approximate estimated cost of $250,000. The objective of this study would be to document beaked whale vocal behavior before, during, and after LFA sonar transmissions. Careful consideration of lessons learned from previous deployments would be needed to increase the probability of a successful project (
2. Anatomical modeling of LF sound reception by beaked whales; approximate estimated cost of $150,000-$200,000. Since the EOG meetings in 2014, Cranford and Krysl (2015) presented a synthetic audiogram for a fin whale, predicted based predominantly on bone conduction of sound through the head to the ear. NMFS (2016) noted that the predicted audiogram does not match the typical U-shaped audiogram expected with normal hearing in mammals in that there is a “hump” at low frequencies and shallow roll-off of sensitivity at high frequencies. Given these difficulties, additional funding would be required to determine the source of the abnormal results. The Navy is continuing to invest in LF cetacean audiogram development and recently released a Broad Agency Announcement in coordination with the Subcommittee on Ocean Science and Technology—Ocean Noise and Marine Life Task force to make further investment in this area.
The final group of recommendations are studies that require additional methodological developments and/or would cost greater than $500,000.
1. Controlled exposure estimates (CEE) for beaked whales with an appropriate LF source. There are many complexities associated with this recommendation, even more so considering the results of the ongoing mid-frequency sonar behavioral response studies (BRS) demonstrating the importance of real-world exposures for characterizing behavioral responses. It is possible that existing LF sources already in use on Navy ranges could be surrogates for SURTASS LFA sonar, but such extrapolations would need to be considered carefully. SURTASS LFA sonar is currently authorized for use in the western and central North Pacific and Indian oceans, regions in which controlled exposure experiments (CEEs) have not been conducted, making experiments with the LFA sonar system itself particularly difficult. Given the cost and complexities associated with this recommendation, it was ranked as a lower priority. This recommendation should also be revisited with future development of tagging technologies for harbor porpoises.
2. LF behavioral audiograms for harbor porpoise or LF auditory brainstem response/auditory evoked potential (ABR/AEP) audiograms for beaked whales. Since the EOG concluded, the Navy funded a study led by Dr. James Finneran (
The Navy has obtained a permit from the NMFS marine mammal health and stranding program to conduct an AEP audiogram on a stranded beaked whale, but to date none have stranded alive in an area with staff suitable to conduct the testing. The Navy will continue to seek opportunities to conduct such research should they arise.
The ranking of research and monitoring recommendations has helped inform Navy and NMFS decision makers of the scientific priority, feasibility, and cost of possible experiments to increase understanding of potential effects of SURTASS LFA sonar on harbor porpoises and beaked whales. Discussions among Navy decision makers from OPNAV N2/N974B/N45, Office of the Deputy Assistant Secretary of the Navy for the Environment, Office of Naval Research, and Navy Living Marine Resources Program will continue to leverage research among various programs. Ongoing discussions between Navy and NMFS will continue to evaluate the most efficient and cost-effective way forward for Navy research and environmental compliance monitoring
Several efforts (Federal and academic) are underway to develop a comprehensive ocean noise budget (
The Navy will collect ambient noise data when the SURTASS passive towed horizontal line array is deployed. However, because the collected ambient noise data may also contain sensitive acoustic information, the Navy classifies the data, and thus does not make these data publicly available. The Navy is exploring the feasibility of declassifying and archiving portions of the ambient noise data for incorporation into appropriate ocean noise budget efforts after all related security concerns have been resolved.
The Navy will evaluate the feasibility and appropriate methods to collect new data to supplement the data available on behavioral responses of marine mammals to SURTASS LFA sonar using newer methods and technologies. These types of scientific inquiries fit within the scope the Navy's Living Marine Resources (LMR) program. The LMR program weighs the various Navy research needs against each other through a needs and solicitation process. The Navy has submitted a needs statement to the LMR advisory committee to research future data collection that would supplement understanding of how SURTASS LFA sonar may affect marine resources, including mysticetes and beaked whales. The LMR program assesses Navy data needs through an iterative process in which each submitted need is evaluated and ranked by an advisory committee. Prior to implementing any potential behavioral response study, the feasibility must be evaluated and a research plan must be developed. The LMR process is the primary mechanism which the Navy uses to solicit expert assistance for marine resource investigations.
The Navy sponsors significant research for marine living resources to study the potential effects of its activities on marine mammals. OPNAV N974B provides a representative to the Navy's Living Marine Resources advisory board to provide input to future research projects that may address SURTASS LFA sonar needs. The most recently available data are for Fiscal Year 2015, in which the Navy reported that it spent $35.9 million that year on marine mammal research and conservation (Marine Mammal Commission, 2017). This ongoing marine mammal research relates to hearing and hearing sensitivity, auditory effects, marine mammal monitoring and detection, noise impacts, behavioral responses, diving physiology and physiological stress, and distribution. The Navy sponsors a significant portion of U.S. research on the effects of human-generated underwater sound on marine mammals and approximately 50 percent of such research conducted worldwide. These research projects may not be specifically related to SURTASS LFA sonar activities; however, they are crucial to the overall knowledge base on marine mammals and the potential effects from underwater anthropogenic noise. The Navy also sponsors research to determine marine mammal abundances and densities for all Navy ranges and other operational areas. The Navy notes that research and evaluation is being carried out on various monitoring and mitigation methods, including passive acoustic monitoring, and the results from this research could be applicable to SURTASS LFA sonar passive acoustic monitoring. The Navy has also sponsored several workshops to evaluate the current state of knowledge and potential for future acoustic monitoring of marine mammals. The workshops bring together underwater acoustic subject matter experts and marine biologists from the Navy and other research organizations to present data and information on current acoustic monitoring research efforts, and to evaluate the potential for incorporating similar technology and methods on Navy instrumented ranges.
In order to issue an ITA for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” Effective reporting is critical both to compliance and to ensuring that the most value is obtained from the required monitoring. There are several different reporting requirements in these regulations:
The Navy will systematically observe during SURTASS LFA sonar activities for injured or disabled marine mammals. In addition, the Navy will monitor the principal marine mammal stranding networks and other media to correlate analysis of any whale mass strandings that could potentially be associated with SURTASS LFA sonar activities.
In the event of a live stranding (or near-shore atypical milling) event, NMFS will advise the Navy of the need to implement shutdown procedures for any use of SURTASS LFA sonar within 50 km (27 nmi) of the stranding. Following this initial shutdown, NMFS will communicate with the Navy to determine if circumstances support any modification of the shutdown zone. The Navy may decline to implement all or part of the shutdown if the holder of the LOA, or his/her designee, determines that it is necessary for national security. Shutdown procedures for live stranding or milling marine mammals include the following:
• If at any time, the marine mammal(s) die or are euthanized, or if herding/intervention efforts that were occurring are stopped, NMFS (individuals specifically identified in the Stranding Communication Protocol) will immediately advise the Navy that the shutdown around that animal(s)' location is no longer needed;
• Otherwise, shutdown procedures will remain in effect until NMFS (individuals specifically identified in the Stranding Communication Protocol) determines and advises the Navy that all live animals involved have left the area (either of their own volition or following an intervention); and
• If further observations of the marine mammals indicate the potential for re-stranding, additional coordination with the Navy may be required to determine what measures are necessary to minimize that likelihood (
Shutdown procedures are not related to the investigation of the cause of the stranding and their implementation is not intended to imply that Navy activity is the cause of the stranding. Rather, shutdown procedures are intended to protect marine mammals exhibiting indicators of distress by minimizing their exposure to possible additional stressors, regardless of the factors that contributed to the stranding.
In the event that Navy personnel (uniformed military, civilian, or contractors conducting Navy work) associated with operating a T-AGOS class vessel discover a live or dead stranded marine mammal at sea, the Navy shall report the incident to NMFS (see communication protocols below) as soon as is feasible. The Navy will provide NMFS with:
• Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
• Species identification (if known) or description of the marine mammal(s) involved;
• Condition of the marine mammal(s) (including carcass condition if the marine mammal is dead);
• Observed behaviors of the marine mammal(s), if alive;
• If available, photographs or video footage of the marine mammal(s); and
• General circumstances under which the marine mammal was discovered (
In the event of a ship strike of a marine mammal by any T-AGOS class vessel, the Navy shall immediately report, or as soon as security clearance procedures and safety conditions allow, the information above in
• Vessel's speed during and leading up to the incident;
• Vessel's course/heading and what training or testing activity was being conducted (if applicable);
• Status of all sound sources in use (
• Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid marine mammal strike;
• Environmental conditions (
• Estimated size and length of marine mammal that was struck;
• Description of the behavior of the marine mammal immediately preceding and following the strike;
• If available, description of the presence and behavior of any other marine mammals immediately preceding the strike;
• Estimated fate of the marine mammal (
• To the extent practicable, photographs or video footage of the struck marine mammal(s); and
• Any relevant information discovered during Navy's investigation of the ship strike.
The classified and unclassified annual reports, which are due annually no later than 90 days after the anniversary of the effective date of the seven-year LOA, will provide NMFS with a summary of the prior year's training and testing transmission hours. Specifically, the classified reports will include dates/times of exercises, location of vessel, mission operational area, marine mammal observations, and records of any delays or suspensions of activities. Marine mammal observations will include animal type and/or species, number of animals sighted by species, date and time of observations, type of detection (visual, passive acoustic, HF/M3 sonar), the animal's bearing and range from vessel, behavior, and remarks/narrative (as necessary). The classified reports will also include the Navy's analysis of take by Level B harassment and estimates of the percentage of marine mammal stocks affected for the year by SURTASS LFA sonar training and testing activities. The Navy's estimates of the percentage of marine mammal stocks and number of individual marine mammals affected by exposure to SURTASS LFA sonar transmissions will be derived using acoustic impact modeling based on operating locations, season of missions, system characteristics, oceanographic environmental conditions, and marine mammal demographics.
Additionally, the annual report will include: (1) Analysis of the effectiveness of the mitigation measures with recommendations for improvements where applicable; (2) assessment of any long-term effects from SURTASS LFA sonar activities; and (3) any discernible or estimated cumulative impacts from SURTASS LFA sonar training and testing activities.
The Navy will provide to NMFS and the public a final comprehensive report analyzing the impacts of SURTASS LFA sonar training and testing activities on marine mammal species and stocks. This report will include an in-depth analysis of all monitoring and Navy-funded research pertinent to SURTASS LFA sonar activities conducted during the seven-year period of this rule, a scientific assessment of cumulative impacts on marine mammal stocks, and an analysis on the advancement of alternative (passive) technologies as a replacement for LFA sonar. This report will be a key document for NMFS' review and assessment of impacts for any future rulemaking.
The Navy will respond to NMFS' comments and requests for additional information or clarification on the annual or comprehensive reports. These reports will be considered final after the Navy has adequately addressed NMFS' comments or provided the requested information, or three months after the submittal of the draft if NMFS does not comment within the three-month time period. NMFS will post the annual and comprehensive reports online at:
Our understanding about marine mammals and the potential effects of SURTASS LFA sonar on marine mammals is continually evolving. Reflecting this, this final rule again includes an adaptive management framework. This allows the agencies to consider new/revised peer-reviewed and published scientific data and/or other information from qualified and recognized sources within academia, industry, and government/non-government organizations to determine (with input regarding practicability) whether SURTASS LFA sonar mitigation, monitoring, or reporting measures should be modified (including additions or deletions), and to make such modification if new scientific data indicate that they would be appropriate. Under this final rule, substantial modifications will be made only after a 30-day period of public review and comment. Substantial modifications include a change in training and testing areas, or significant changes to mitigation.
As discussed in the
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, the discussion of our analyses applies to all the stocks listed in Table 17 (including those for which density and take estimates have been pooled), because the anticipated effects of the specified activities on these different marine mammal stocks are expected to be similar, given the operational parameters of the activities. While there are differences in the hearing sensitivity of different groups, these differences have been factored into the analysis for auditory impairment. However, the nature of their behavioral responses is expected to be similar for SURTASS LFA sonar, especially given the context of their short duration and open ocean exposures. Additionally, with the operational avoidance of areas (and additional transmission hour limitations year, no more than 124 hours in years 1-4 and 148 hours in years 5-7) that are designated for specific biologically important reasons and coastal standoff zones, and the anticipated low-level effects, there is no need to differentially evaluate species or stocks based on varying status. Where there is a notable difference in the proportion of authorized takes (as compared to abundance) for two species, we explicitly address it below.
The Navy has described its specified activities based on best estimates of the number of hours that the Navy will conduct SURTASS LFA sonar training and testing activities. The exact number of transmission hours may vary from year to year, but will not exceed the annual total of 496 transmission hours for all vessels in years 1-4 (currently four vessels), or the annual total of 592 transmission hours for all vessels in years 5-7 regardless of the number of vessels in use (previous SURTASS LFA sonar rulemakings evaluated and authorized 432 transmission hours per vessel per year).
As mentioned previously, NMFS estimates that 46 species of marine mammals representing 139 stocks could be taken by Level B harassment over the course of the seven-year period. For reasons stated previously, no mortalities or injuries are anticipated to occur as a result of the Navy's proposed SURTASS LFA sonar training and testing activities, and none are authorized by NMFS. The Navy has operated SURTASS LFA sonar under NMFS regulations for the last 17 years without any reports of serious injury or death. The evidence to date, including recent scientific reports, annual monitoring reports, and 17 years of Navy experience conducting SURTASS LFA sonar activities, further supports the conclusion that the potential for injury, and particularly serious injury, to occur is minimal.
Regarding the potential for mortality, as described previously, neither acoustic impacts resulting in stranding nor ship strikes are expected to result from SURTASS LFA sonar training and testing activities. There is no empirical evidence of strandings or ship strikes of marine mammals associated spatially or temporally with the employment of SURTASS LFA sonar. Moreover, the sonar system acoustic characteristics differ between LFA sonar and MF sonars that have been associated with strandings: LFA sonars use frequencies from 100 to 500 Hz, with relatively long signals (pulses, with average length of 60 sec), while MF sonars use frequencies greater than 1,000 Hz, with relatively short signals on the order of 1 sec. NMFS also makes a distinction between the common features shared by the stranding events associated with MF sonar in Greece (1996), Bahamas (2000), Madeira (2000), Canary Islands (2002), Hanalei Bay (2004), and Spain (2006), referenced in the
NMFS neither anticipates nor authorizes Level A harassment of marine mammals as a result of specified activities. The mitigation measures (including visual monitoring along with active and passive acoustic monitoring, which together have been shown to be over 98 percent effective at detecting marine mammals, approaching 100 percent for multiple HF/M3 pings of any sized marine mammal), and implementing a shutdown zone of 2,000 yds around the LFA sonar array and vessel) would allow the Navy to avoid exposing marine mammals to received levels of SURTASS LFA sonar or HF/M3 sonar sound that would result in injury (Level A harassment). Additionally, as discussed in the
As noted above, the context of exposures is important in evaluating the ultimate impacts of Level B harassment on individuals. In the case of SURTASS LFA sonar, the approaching sound source would be moving through the open ocean at low speeds, so concerns of noise exposure are somewhat lower in this context compared to situations where animals may not be as able to avoid strong or rapidly approaching sound sources. In addition, the duration of the take is important; in the case of SURTASS LFA sonar, the vessel continues to move and any interruption of behavior would be of relatively short duration. Further, NMFS and the Navy have imposed geographic restrictions that minimize behavioral disruption in times and areas where impacts would be more likely to lead to effects on individual fitness that could impact the species or stock.
For SURTASS LFA sonar training and testing activities, the Navy provided information (Table 7-1 of the Navy's application) estimating incidental take numbers and percentages of marine mammal stocks that could potentially occur due to SURTASS LFA sonar training and testing activities based on the 15 model areas in the central and western North Pacific and eastern Indian Oceans. Based on our evaluation, incidental take from the specified activities associated with SURTASS LFA sonar training and testing activities will most likely fall within the realm of short-term and temporary, or ephemeral, disruption of behavioral patterns (Level B harassment), will not include Level A harassment, and is not expected to impact reproduction or survival of individuals. NMFS bases this assessment on a number of factors (discussed in more detail in previous sections) considered together:
(1) Geographic Restrictions—The coastal standoff and OBIA geographic restrictions on SURTASS LFA sonar training and testing activities are expected to minimize the likelihood of disruption of marine mammals in areas where important behavior patterns such as migration, calving, breeding, feeding, or sheltering occur, or in areas with small resident populations or higher densities of marine mammals. As a result, the takes that occur are less likely to result in energetic effects or disturbances of other important behaviors that would reduce reproductive success or survivorship.
(2) Low Frequency Sonar Scientific Research Program (LFS SRP)—The Navy designed the three-phase LFS SRP study to assess the potential impacts of SURTASS LFA sonar on the behavior of low-frequency hearing specialists, those species believed to be at (potentially) greatest risk due to the presumed overlap in hearing of these species and the frequencies at which SURTASS LFA sonar is operated. This field research addressed three important behavioral contexts for baleen whales: (1) Blue and fin whales feeding in the southern California Bight, (2) gray whales migrating past the central California coast, and (3) humpback whales breeding off Hawaii. These experiments, which exposed baleen whales to received levels ranging from 120 to approximately 155 dB re: 1 μPa, confirmed that some portion of the total number of whales exposed to LFA sonar responded behaviorally by changing their vocal activity, moving away from the source vessel, or both, but the responses were short-lived and animals returned to their normal activities within tens of minutes after initial exposure. While some of the observed responses would likely be considered “take” under the MMPA, these short-term behavioral responses do not necessarily constitute significant changes in biologically important behaviors, such as those that might be expected to affect individual fitness. In addition, these experiments illustrated that the context of an exposure scenario is important for determining the probability, magnitude, and duration of a response. This was shown by the fact that migrating gray whales responded to a sound source in the middle of their migration route but showed no response to the same sound source when it was located father offshore, outside the migratory corridor, even when the source level was increased to maintain the same received levels within the migratory corridor.
Although the LFS SRP study is two decades old, the collected behavioral response data remain valid and highly relevant because of the lack of additional studies utilizing this specific source, but also because the data show, as reflected in newer studies with other sound sources, that the context of an exposure (novelty of the sound source, distance from the sound source and activity of the animals experiencing exposure, and whether the source is perceived as approaching or moving away, etc.) is as important as, the source level and frequency in terms of assessing reactions (see the Behavioral Response/Disturbance section of the
(3) Efficacy of the Navy's Three-Part Mitigation Monitoring Program—Review of Final Comprehensive and Annual Reports, from August 2002 through December 2018, indicates that the HF/M3 active sonar system has proven to be the most effective of the mitigation monitoring measures to detect possible marine mammals in proximity to the transmitting LFA sonar array, and use of this system substantially increases the probability of detecting marine mammals within the mitigation zone (and beyond), providing a superior monitoring capability. Because the HF/M3 active sonar is able to monitor marine mammals out to an effective range of 2 to 2.5 km (1.2 to 1.5 mi; 1.1 to 1.3 nmi) from the vessel, it is unlikely that the SURTASS LFA sonar operations would expose marine mammals to an SPL greater than approximately 174 dB re: 1 μPa rms. The combination of visual, passive acoustic, and active acoustic (HF/M3) monitoring results in near 100 percent probability of detection for a medium-sized (approximately 33 ft (10 m)) marine mammal swimming towards the system before the animal enters the LFA sonar mitigation zone (see Ellison and Stein, 2001 and Chapter 5, section 5.4.3 of the 2019 SURTASS LFA FSEIS/SOEIS for a summary of the effectiveness of the HF/M3 monitoring system). Lastly, as noted above, from the commencement of SURTASS LFA sonar use in 2002 through the present, neither operation of LFA sonar, nor operation of the T-AGOS vessels, has been associated with any mass or individual strandings of marine mammals. In addition, required monitoring reports indicate that there have been no apparent marine mammal avoidance reactions observed, and no observed marine mammal exposures to sound levels associated with Level A harassment takes due to SURTASS LFA sonar since its use began in 2002.
In examining the results of the mitigation monitoring procedures over the previous 17 years of SURTASS LFA activities, NMFS has concluded that the mitigation and monitoring measures for triggering shutdowns of the LFA sonar system have been implemented properly and have successfully minimized the
For reasons discussed in the
As noted above, because of the nature, scale, and locations of SURTASS LFA sonar training and testing, there is no reason to expect meaningfully differential impacts on any particular species or stock that warrant additional discussion. However, we include the following to ensure understanding of the two cases where the percentages of stocks taken are notably higher compared to other stocks. As also noted previously, the modeling the Navy uses allows for the enumeration of instances of take—each representing an exposure above the Level B harassment threshold of a single marine mammal for some amount of time (likely relatively short) within a single day. The model does not predict how many of these instances for a given species or stock may occur as multiple, or repeated, takes to a single individual. Given the nature (small number of ships and relatively few hours across two ocean basins) and location of the activity (beyond coastal exclusion in open ocean, areas where species/stocks are not concentrated as much), as well as the relatively small percentages of take compared to abundance for most stocks (the vast majority below 10 percent, 12 stocks in the 10-20 percent range, and a handful ranging from 20-67 percent) and the fact that takes of single stocks are expected across multiple regions, we expect that most individuals taken are taken only once in a year with some small subset taken perhaps a few times in the course of a year. However, two stocks have somewhat higher percentages that we note here. When estimated instances of take are compared to the estimated stock abundances, the percentages are 117 and 321 for the Western North Pacific stock of killer whales and the Western North Pacific stock of humpback whales, respectively. Acknowledging the uncertainty surrounding abundance estimates for the Navy's action area, it is still worth noting that these percentages are notably higher than others, and would suggest that some number of individuals are expected to be taken more than once. It indicates the possibility that some individuals are taken several times within a year, as the percentage exceeds 100 percent. For example, for the Western North Pacific stock of humpback whales, the average number of takes would be three or more per individual. It is unlikely that takes would be exactly evenly distributed across all individuals, and it is therefore more reasonable to assume that some number of individuals would be taken fewer than three times, while others would be taken on more than three days, and we assume up to twice this (
For the following summarized reasons, pulling in the supporting information both in this section and previous sections, including material not repeated from the proposed rule because it was unchanged, NMFS finds that the total authorized taking from SURTASS LFA sonar training and testing activities will have a negligible impact on the affected species or stocks:
(1) The small number of SURTASS LFA sonar systems that will be operating in the Study Area (likely not in close proximity to one another) and the low total number of hours of operation planned across all vessels;
(2) The relatively low duty cycle, short duration of training and testing events, and offshore nature of the SURTASS LFA sonar use;
(3) The fact that marine mammals in unspecified migration corridors and open ocean concentrations would be adequately protected from exposure to sound levels that would result in injury, most TTS (and any accrued would be expected to be of a small degree), and more severe levels of behavioral disruption by the historical demonstrated effectiveness of the Navy's three-part monitoring program in detecting marine mammals and triggering shutdowns;
(4) Geographic restrictions requiring the SURTASS LFA sonar sound field not exceed 180 re: 1 μPa rms within 22 km of any shoreline, including islands, or at a distance of one km from the perimeter of an OBIA, as well as limitations on amount of activity near an OBIA absent additional approvals through the Navy chain of command, thereby further limiting the severity and number of behavioral disturbances in those areas; and
(5) The proven effectiveness of the required three-part monitoring and mitigation protocols.
In summary, based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, the authorized takes are not expected to adversely affect any species or stock through impacts on recruitment or survival. Therefore, NMFS finds that the total authorized marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
The Navy will not operate SURTASS LFA sonar in Arctic waters nor in the Gulf of Alaska, or off the Aleutian Island chain where subsistence uses of marine mammals protected under the MMPA occur. Therefore, there are no relevant subsistence uses of marine mammals implicated by this action and there will be no impact on subsistence hunting. SURTASS LFA sonar will not cause abandonment of any harvest/hunting locations, displace any subsistence users, or place physical barriers between marine mammals and hunters. NMFS has determined that the total taking affecting species or stocks will not have an unmitigable adverse impact on the
Eleven marine mammal species under NMFS' jurisdiction with confirmed or possible occurrence in the central and western North Pacific and eastern Indian Oceans are listed as endangered or threatened under the ESA: Blue whale; fin whale; humpback whale (Western North Pacific DPS); North Pacific right whale; sei whale; gray whale (Western North Pacific DPS); sperm whale; false killer whale (Main Hawaiian Islands Insular DPS); Steller sea lion (western DPS); spotted seal (Southern DPS); and Hawaiian monk seal. ESA-designated critical habitat for Hawaiian monk seals and Main Hawaiian Island insular false killer whales is also located in the Study Area. The Navy consulted with NMFS pursuant to section 7 of the ESA, and NMFS also consulted internally on the issuance of these regulations and LOA under section 101(a)(5)(A) of the MMPA for SURTASS LFA sonar training and testing activities. NMFS issued a Biological Opinion concluding that the issuance of the rule and subsequent LOA is not likely to jeopardize the continued existence of the threatened and endangered species under NMFS' jurisdiction and is not likely to result in the destruction or adverse modification of critical habitat in the SURTASS LFA Study Area. The Biological Opinion for this action is available at
The USFWS is responsible for regulating the take of the several marine mammal species including the polar bear, walrus, and dugong. The Navy has determined that none of these species occur in geographic areas that overlap with SURTASS LFA sonar activities and, therefore, that SURTASS LFA sonar activities will have no effect on the endangered or threatened species or the critical habitat of ESA-listed species under the jurisdiction of the USFWS. Thus, no consultation with the USFWS pursuant to Section 7 of the ESA occurred.
Under section 304(d) of the National Marine Sanctuaries Act (NMSA), federal agencies are required to consult with NOAA's Office of National Marine Sanctuaries (ONMS) on activities that are likely to destroy, cause the loss of, or injure any sanctuary resource, unless it is determined that consultation is not required. Based on NMFS' assessment of its action of authorizing incidental take through MMPA regulations and an LOA for these Navy activities, NMFS determined that consultation under the NMSA is not required.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action does not contain any collection of information requirements for purposes of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501
The Office of Management and Budget has determined that this final rule is not significant for purposes of Executive Order 12866.
Pursuant to the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration at the proposed rule stage that this action will not have a significant economic impact on a substantial number of small entities. The RFA requires a Federal agency to prepare an analysis of a rule's impact on small entities whenever the agency is required to publish a notice of proposed rulemaking. However, a Federal agency may certify, pursuant to 5 U.S.C. 605(b), that the action will not have a significant economic impact on a substantial number of small entities. The Navy is the sole entity that will be affected by this rulemaking and is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Any requirements imposed by an LOA issued pursuant to these regulations, and any monitoring or reporting requirements imposed by these regulations, will be applicable only to the Navy. NMFS does not expect the issuance of these regulations or the associated LOA to result in any impacts to small entities pursuant to the RFA. Because this action will directly affect the Navy and not a small entity, NMFS concludes the action will not result in a significant economic impact on a substantial number of small entities. No comments were received regarding this certification. As a result, a regulatory flexibility analysis is not required and none has been prepared.
NMFS has determined that there is good cause under the Administrative Procedure Act (5 U.S.C. 553(d)(3)) to waive the 30-day delay in the effective date of this final rule. No individual or entity other than the Navy is affected by the provisions of these regulations. The Navy has informed NMFS that it requests that this final rule take effect on or by August 13, 2019, so as to not cause a disruption in training and testing activities when the NDE expires on August 12, 2019. The Navy has a compelling national security reason to continue military readiness activities without interruption to the SURTASS LFA sonar activities. Suspension or interruption of the Navy's ability to conduct those activities disrupts adequate and realistic military readiness, proper operations, and suitability for combat essential to national security. NMFS was unable to accommodate the 30-day delay of the effectiveness period due to the need for more time to consider additional mitigation measures and finalize NEPA obligations. The waiver of the 30-day delay of the effective date of the final rule will ensure that the MMPA final rule and LOA are in place by the time the NDE expires. Any delay in finalizing the rule would result in either: (1) A suspension of planned naval training and testing, which would disrupt vital training and testing essential to national security; or (2) absent another NDE, the potential for unauthorized takes of marine mammals by Navy (should the Navy conduct training and testing without an LOA). Moreover, the Navy is ready to implement the rule
Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation.
For reasons set forth in the preamble, 50 CFR part 218 is amended as follows:
16 U.S.C. 1361
Regulations in this subpart apply to the U.S. Navy (Navy) for the taking of marine mammals that occurs incidental to the Navy's SURTASS LFA sonar training and testing activities under authority of the Secretary of the Navy within the central and western North Pacific and eastern Indian Oceans (SURTASS LFA Sonar Study Area) (Table 1 to § 218.230).
Regulations in this subpart are effective from August 13, 2019, through August 12, 2026.
Under a Letter or Letters of Authorization (LOA) issued pursuant to §§ 216.106 of this chapter and 218.237, the Holder of the LOA (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in § 218.230 by Level B harassment associated with SURTASS LFA sonar training and testing provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOA.
Notwithstanding takings contemplated in § 218.230 and authorized by a LOA issued under §§ 216.106 of this chapter and 218.237, no person in connection with the activities described in § 218.230 may:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 of this chapter and 218.237;
(b) Take any marine mammal not specified in such LOAs;
(c) Take any marine mammal specified in such LOAs in any manner other than Level B harassment;
(d) Take any marine mammal specified in the LOA if NMFS makes a determination that such taking is having, or may have, more than a negligible impact on the species or stocks concerned; or
(e) Take a marine mammal specified in the LOA if NMFS determines such taking is having, or may have, an unmitigable adverse impact on availability of the species or stock for taking for subsistence uses.
When conducting activities identified in § 218.230, the mitigation measures described in this section and in any LOA issued under §§ 216.106 of this chapter and 218.237 must be implemented.
(a)
(b)
(2) The Navy must not transmit the SURTASS LFA sonar signal at a frequency greater than 500 Hz.
(c)
(d)
(i) All marine mammals have left the area of the 2,000-yard LFA sonar mitigation zone; and
(ii) There is no further detection of any marine mammal within the 2,000-yard LFA sonar mitigation zone as determined by the visual, passive acoustic, and active acoustic high frequency monitoring described in § 218.235.
(2) [Reserved]
(e)
(i) At least 30 minutes prior to any SURTASS LFA sonar transmissions; and
(ii) Anytime after the HF/M3 source has been powered down for more than two minutes.
(2) The Navy must not increase the HF/M3 sound pressure level once a marine mammal is detected; ramp-up may resume once marine mammals are no longer detected.
(f)
(i) The received level of SURTASS LFA sonar transmissions will not exceed 180 dB re: 1 μPa rms within 22 km (12 nmi) from any emergent land, including offshore islands;
(ii) The received level of SURTASS LFA sonar transmissions will not exceed 180 dB re: 1 μPa rms at a distance of 1 km (0.5 nmi) seaward of the outer perimeter of any Offshore Biologically Important Area (OBIA) designated in the Study Area for SURTASS LFA sonar in paragraph (f)(2) of this section, or subsequently identified through the Adaptive Management process specified in § 218.241, during the period specified. The boundaries and periods of such OBIAs will be kept on file in NMFS' Office of Protected Resources and on its website at
(iii) No more than 25 percent of the authorized amount (transmission hours) of SURTASS LFA sonar for training and testing will be conducted within 10 nmi (18.5 km) of any single OBIA during any year (no more than 124 hours in years 1-4 and 148 hours in years 5-7) unless the following conditions are met: Should national security present a requirement to conduct more than 25 percent of authorized hours of SURTASS LFA sonar within 10 nmi (18.5 km) of any single OBIA during any year, naval units will obtain permission from the appropriate designated Command authority prior to commencement of the activity. The Navy will provide NMFS with notification as soon as is practicable and include the information (
(iv) No activities with the SURTASS LFA system will occur within territorial seas of foreign nations, which are areas from 0 up to 12 nmi from shore, depending on the distance that individual nations claim; and
(v) No activities with the SURTASS LFA sonar system will occur in the waters of Penguin Bank, Hawaii (defined as water depth of 600 ft (183 m)), and ensonification of Hawaii state waters (out to 3 nmi) will not exceed 145 dB re: 1 μPa rms.
(2) Offshore Biologically Important Areas (OBIAs) for marine mammals (with specified periods) for SURTASS LFA sonar training and testing activities include the following (Table 1 to paragraph (f)(2)):
(g)
(a) The Navy must:
(1) Conduct visual monitoring from the ship's bridge during all daylight hours (30 minutes before sunrise until 30 minutes after sunset). During training and testing activities that employ SURTASS LFA sonar in the active mode, the SURTASS vessels must have Lookouts to maintain a topside watch with standard binoculars (7x) and with the naked eye. If the lookout sights a possible marine mammal, the lookout will use big-eye binoculars (25x) to confirm the sighting and potentially identify the marine mammal species.
(2) Use the passive SURTASS sonar component to detect vocalizing marine mammals; and
(3) Use the HF/M3 sonar to locate and track marine mammals in relation to the SURTASS LFA sonar vessel and the LFA mitigation zone, subject to the ramp-up requirements in § 216.234(e) of this chapter.
(b) Monitoring under paragraph (a) of this section must:
(1) Commence at least 30 minutes before the first SURTASS LFA sonar training and testing transmission;
(2) Continue between transmission pings; and
(3) Continue either for at least 15 minutes after completion of the SURTASS LFA sonar training and testing transmission, or, if marine mammals are exhibiting unusual changes in behavioral patterns, until behavior patterns return to normal or conditions prevent continued observations.
(c) The Navy must designate qualified on-site individuals to conduct the mitigation, monitoring, and reporting activities specified in these regulations and LOA issued under §§ 216.106 of this chapter and 218.237.
(d) The Navy must continue to assess data from the Marine Mammal Monitoring Program and work toward making some portion of that data, after appropriate security reviews, available to scientists with appropriate clearances. Any portions of the analyses conducted by these scientists based on these data that are determined to be unclassified after appropriate security reviews will be made publically available.
(e) The Navy must collect ambient noise data and will explore the feasibility of declassifying and archiving the ambient noise data for incorporation into appropriate ocean noise budget efforts.
(f) The Navy must conduct all monitoring required under LOAs.
(a) The Navy must submit classified and unclassified annual training and testing activity reports to the Director, Office of Protected Resources, NMFS, no later than 90 days after the end of each year covered by the LOA beginning on the date of effectiveness of a LOA. Each annual training and testing activity report will include a summary of all active-mode training and testing activities completed during that year. At a minimum, each classified training and testing activity report must contain the following information:
(1) Dates, times, and location of each vessel during each training and testing activity;
(2) Information on sonar transmissions during each training and testing activity;
(3) Results of the marine mammal monitoring program specified in the LOA; and
(4) Estimates of the percentages of marine mammal species and stocks affected (both for the year and cumulatively for each successive year) covered by the LOA.
(b) The seventh annual report must be prepared as a final comprehensive report, which will include information for the final year as well as the prior six years of activities under the rule. This final comprehensive report must also contain an unclassified analysis of new passive sonar technologies and an assessment of whether such a system is feasible as an alternative to SURTASS LFA sonar, and be submitted to the Director, Office of Protected Resources, NMFS as described in this paragraph (b).
(c) The Navy will continue to assess the data collected by its undersea arrays and work toward making some portion of that data, after appropriate security reviews, available to scientists with appropriate clearances. Any portions of the analyses conducted by these scientists based on these data that are determined to be unclassified after appropriate security reviews will be made publically available.
(d) The Navy must consult the Notification and Reporting Plan, which sets out notification, reporting, and other requirements for when dead, injured, or live stranded marine mammals are reported in the Study Area. The Stranding and Notification Plan is available at:
(a) To incidentally take marine mammals pursuant to these regulations, Navy must apply for and obtain a Letter of Authorization (LOA).
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, Navy may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA (excluding changes made pursuant to the adaptive management provision of § 218.239), the Navy must apply for and obtain a modification of the LOA as described in § 218.238.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact on the species, its habitat, and on the availability of the species for subsistence uses (
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA will be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA will be published in the
(a) An LOA issued under §§ 216.106 of this chapter and 218.237 for the activity identified in § 218.230 may be renewed or modified upon request by the applicant, provided that:
(1) The planned specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for the regulations in this subpart (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and
(2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOA(s) were implemented.
(b) For LOA modification or renewal requests by the Navy that include changes to the activity or to the mitigation, monitoring, or reporting measures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or that do not result in more than a minor change in the total estimated number of takes (or distribution by species or stock or years), NMFS may publish notification of a planned LOA in the
(c) An LOA issued under §§ 216.106 of this chapter and 218.237 may be modified by NMFS under the following circumstances:
(1)
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include:
(A) Results from the Navy's monitoring from the previous year(s);
(B) Results from other marine mammal and/or sound research or studies; or
(C) Any information that reveals marine mammals may have been taken in a manner, extent, or number not authorized by the regulations in this subpart or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS will publish a notice
(2)
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Summary presentation of an interim rule.
This document summarizes the Federal Acquisition Regulation (FAR) rule agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) in this Federal Acquisition Circular (FAC) 2019-05. A companion document, the
For effective date see the separate document, which follows.
A summary for the FAR rule follows. For the actual revisions and/or amendments made by this FAR Case, refer to the specific subject set forth in the document following this item summary. FAC 2019-05 amends the FAR as follows:
This interim rule amends the FAR to implement section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232). Paragraph (a)(1)(A) of section 889 prohibits agencies from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service that uses covered telecommunication equipment or services as a substantial or essential component of any system, or as a critical technology as part of any system on or after August 13, 2019, unless an exception applies or a waiver has been granted. Further prohibitions at paragraph (a)(1)(B) of section 889 go into effect August 13, 2020, and will be addressed through separate rulemaking.
To implement paragraph (a)(1)(A) of section 889, this interim rule provides a new solicitation provision and contract clause. The provision at FAR 52.204-24 requires offerors to represent whether their offer includes covered telecommunications equipment or services and if so, to identify additional details about its use. Representations are also required for orders on indefinite delivery contracts. The clause at FAR 52.204-25 prohibits contractors from providing any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception applies or the covered telecommunications equipment or services are covered by a waiver described in FAR 4.2104. The contractor must also report any such equipment, systems, or services discovered during contract performance; this requirement flows down to subcontractors.
This rule applies to all acquisitions, including acquisitions at or below the simplified acquisition threshold and to acquisitions of commercial items, including commercially available off-the-shelf items. It may have a significant economic impact on a substantial number of small entities.
This interim rule is being implemented as a national security measure to protect Government information, and Government information and communication technology systems.
Contracting officers shall modify certain contracts to include the new FAR clause, as specified in the “Dates” section of the preamble of the interim rule. Contracting officers also shall include the new FAR provision in solicitations for an order, or notices of intent to place an order, under those contracts.
Federal Acquisition Circular (FAC) 2019-05 is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator of National Aeronautics and Space Administration.
Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2019-05 is effective August 13, 2019 except for FAR Case 2018-017, which is effective August 13, 2019.
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Interim rule.
DoD, GSA, and NASA are issuing an interim rule amending the Federal Acquisition Regulation (FAR) to implement section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232).
Contracting officers shall include the provision at FAR 52.204-24, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment and clause at FAR 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment as prescribed—
• In solicitations issued on or after August 13, 2019, and resultant contracts; and
• In solicitations issued before August 13, 2019, provided award of the resulting contract(s) occurs on or after August 13, 2019.
Contracting officers shall modify, in accordance with FAR 1.108(d), existing indefinite delivery contracts to include the FAR clause for future orders, prior to placing any future orders.
If modifying an existing contract or task or delivery order to extend the period of performance, including exercising an option, contracting officers shall include the clause in accordance with 1.108(d).
The contracting officer shall include the provision at 52.204-24, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment, in all solicitations for an order, or notices of intent to place an order, including those issued before August 13, 2019, where performance will occur on or after that date, under an existing indefinite delivery contract.
Submit comments in response to FAR Case 2018-017 by any of the following methods:
•
•
This interim rule revises the FAR to implement section 889(a)(1)(A) of the NDAA for FY 2019 (Pub. L. 115-232). Section 889(a)(1)(A) prohibits agencies from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as a critical technology as part of any system, on or after August 13, 2019.
“Covered telecommunications equipment or services,” as defined in the statute, means—
• Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities);
• For the purpose of public safety, security of Government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities);
• Telecommunications or video surveillance services provided by such entities or using such equipment; or
• Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
The rule adopts the definition of critical technologies included in the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA) (Section 1703 of Title XVII of the NDAA for FY 2019, Pub. L. 115-232, 50 U.S.C. 4565(a)(6)(A)).
“Covered foreign country,” as defined in section 889, means the People's Republic of China.
Under certain circumstances, section 889 allows the head of an executive agency to grant a one-time waiver on a case-by-case basis for up to a two-year period; in other circumstances, waivers issued by the Director of National Intelligence are authorized.
This rule requires submission of a representation with each offer that will require offerors to identify as part of their offer any covered telecommunications equipment or services that will be provided to the Government. DoD, GSA, and NASA recognize that some agencies may need to tailor the approach to the information collected based on the unique mission and supply chain risks for their agency.
In order to reduce the information collection burden imposed on the public, DoD, GSA, and NASA are currently working on updates to the System for Award Management to allow offerors to represent annually whether they sell equipment, systems, or services that include covered telecommunications equipment or services. Only offerors that provide an affirmative response to the annual representation would be required to provide the offer-by-offer representation in their offers for contracts and for task or delivery orders under indefinite delivery contracts.
The prohibition in section 889(a)(1)(B) is not effective until August 13, 2020, and will be implemented through separate rulemaking.
This rule amends FAR part 4, adding a new subpart 4.21, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment, with a corresponding new provision at 52.204-24, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment, and contract clause at 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. The rule adds text in subpart 12.3, Acquisition of Commercial Items, and subpart 13.2, Actions at or Below the Micro-Purchase Threshold, to address section 889(a)(1)(A) with regard to commercial item representations and micro-purchases.
The definition of “critical technologies” provided in FIRRMA has been adopted to address the prohibition in section 889(a)(1)(A) on providing
To implement section 889(a)(1)(A), the clause at 52.204-25 prohibits contractors from providing any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception or a waiver applies. The contractor must also report any such equipment, systems, or services discovered during contract performance; this requirement flows down to subcontractors.
The provision at 52.204-24 is required in all solicitations, and includes a representation that will require offerors to identify as part of their offer any covered telecommunications equipment or services that will be provided to the Government. The additional information provided through this representation will assist the Government in appropriately assessing the presence of any covered telecommunications equipment or services that may be present in an offer, for example, to determine if the items in question will be used as a substantial or essential component, or to determine if a waiver request may be appropriate.
This rule also adds cross-references in FAR parts 39, Acquisition of Information Technology, and 13, Simplified Acquisition Procedures, to the coverage of the section 889 prohibition at FAR subpart 4.21. In addition, the rule adds OMB Control Number 9000-0199 to the list at FAR 1.106 of OMB approval under the Paperwork Reduction Act.
This rule adds a new provision at 52.204-24, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment, and a new contract clause at 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment, in order to implement section 889(a)(1)(A) of the NDAA for FY 2019, which prohibits the purchase of any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system on or after August 13, 2019, unless an exception applies or a waiver has been granted.
41 U.S.C. 1905 governs the applicability of laws to acquisitions at or below the simplified acquisition threshold (SAT). Section 1905 generally limits the applicability of new laws when agencies are making acquisitions at or below the SAT, but provides that such acquisitions will not be exempt from a provision of law under certain circumstances, including when the FAR Council makes a written determination and finding that it would not be in the best interest of the Federal Government to exempt contracts and subcontracts in amounts not greater than the SAT from the provision of law.
41 U.S.C. 1906 governs the applicability of laws to contracts for the acquisition of commercial items, and is intended to limit the applicability of laws to contracts for the acquisition of commercial items. Section 1906 provides that if the FAR Council makes a written determination that it is not in the best interest of the Federal Government to exempt commercial item contracts, the provision of law will apply to contracts for the acquisition of commercial items.
Finally, 41 U.S.C. 1907 states that acquisitions of commercially available off-the-shelf (COTS) items will be exempt from a provision of law unless certain circumstances apply, including if the Administrator for Federal Procurement Policy makes a written determination and finding that would not be in the best interest of the Federal Government to exempt contracts for the procurement of COTS items from the provision of law.
The FAR Council has determined that it is in the best interest of the Government to apply the rule to contracts at or below the SAT and for the acquisition of commercial items. The Administrator for Federal Procurement Policy has determined that it is in the best interest of the Government to apply this rule to contracts for the acquisition of COTS items.
While the law does not specifically address acquisitions of commercial items, including COTS items, there is an unacceptable level of risk for the Government in buying equipment, systems, or services that use covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system. This level of risk is not alleviated by the fact that the equipment or service being acquired has been sold or offered for sale to the general public, either in the same form or a modified form as sold to the Government (
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action” under E.O. 12866. Accordingly, the Office of Management and Budget (OMB) has reviewed this rule. This rule is not a major rule under 5 U.S.C. 804.
This rule is not subject to the requirements of E.O. 13771, because the rule is issued with respect to a national security function of the United States. As highlighted by sections III, VII, and VIII of this preamble, national security is a primary direct benefit of this rule. Also, though this rule is subject to the regulatory publication requirements of 41 U.S.C. 1707, application of the national security exemption under E.O. 13771 requires assessing the application of the “good cause” exception under 5 U.S.C. 553. This rule meets the “good cause” exception as the one-year deadline Congress established to implement section 889(a)(1)(A) would not provide sufficient time for notice and comment in light of the complex nature of the rule and sensitive interagency process.
DoD, GSA, and NASA expect that this rule may have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The reason for this interim rule is to implement section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232).
The objective of the rule is to prescribe appropriate policies and procedures to enable agencies to determine and ensure that they are not procuring or obtaining any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system on or after August 13, 2019. The legal basis for the rule is section 889(a)(1)(A) of the NDAA for FY 2019, which prohibits Government procurement of such equipment, systems, and services on or after that date, unless an exception applies or a waiver has been granted.
This collection includes a burden for reporting during contract performance and a representation. A data set was generated from the Federal Procurement Data System (FPDS) for fiscal years (FY) 2016, 2017, and 2018 for use in estimating the number of small entities affected by this rule.
The representation requirement in FAR provision 52.204-24 and the reporting requirement in the clause at FAR 52.204-25 will be incorporated in all solicitations and contracts, including contracts with small entities. The FPDS data indicates that the Government awarded contracts to an average of 95,223 unique entities, of which 69,865 (73 percent) were small entities. DoD, GSA, and NASA estimate that representations will be received from twice this number of entities, or 139,730 small entities. While representations will be submitted by all offerors, detailed additional information is only estimated to be required from approximately 10 percent of offerors, or 13,973 small entities. It is estimated that reports will be submitted by 5 percent of contractors, or 3,493 small entities.
The provision at FAR 52.204-24 requires each offeror to represent whether it will provide covered telecommunications equipment or services. If the offeror responds affirmatively, the offeror is required to further disclose substantial detail regarding the basis for the affirmative representation. Representations will be submitted by all offerors, or 139,730 small entities; it is estimated that detailed representations following an affirmative response will be submitted by 10 percent of contractors, or 13,973 small entities.
The clause at FAR 52.204-25 requires contractors and subcontractors to report to the contracting officer, or for DoD through
The rule does not duplicate, overlap, or conflict with any other Federal rules.
Because of the nature of the prohibition enacted by section 889(a)(1)(A), it is not possible to establish different compliance or reporting requirements or timetables that take into account the resources available to small entities or to exempt small entities from coverage of the rule, or any part thereof. However, in order to reduce the information collection burden imposed on the public, DoD, GSA, and NASA are currently working on updates to the System for Award Management to allow offerors to represent annually whether they sell equipment, systems, or services that include covered telecommunications equipment or services. Only offerors that provide an affirmative response to the annual representation would be required to provide the offer-by-offer representation in their offers for contracts and for task or delivery orders under indefinite delivery contracts. DoD, GSA, and NASA were unable to identify any alternatives that would reduce the burden on small entities and still meet the objectives of section 889.
The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2018-017) in correspondence.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501
DoD, GSA, and NASA requested, and OMB authorized, emergency processing of the collection of information involved in this rule, consistent with 5 CFR 1320.13. DoD, GSA, and NASA have determined the following conditions have been met:
a. The collection of information is needed prior to the expiration of time periods normally associated with a routine submission for review under the provisions of the PRA, because the prohibition in section 889(a)(1)(A) goes into effect on August 13, 2019.
b. The collection of information is essential to the mission of the agencies to ensure the Federal Government complies with section 889(a)(1)(A) on the statute's effective date in order to protect the Government supply chain from risks posed by covered telecommunications equipment or services.
c. Moreover, DoD, GSA, and NASA cannot comply with the normal clearance procedures because public harm is reasonably likely to result if current clearance procedures are followed. Authorizing collection of this information on the effective date will ensure that agencies do not procure or obtain, or extend or renew a contract to procure or obtain, equipment, systems, or services in violation of the prohibition in section 889(a)(1)(A). It will also avoid substantial additional costs that may be incurred from having to replace such equipment, systems, or services that are purchased in violation of section 889(a)(1)(A), as well as additional administrative costs for reprocurement.
DoD, GSA, and NASA intend to provide a separate 60-day notice in the
The public reporting burden for this collection of information consists of a representation to identify whether an offeror will provide covered telecommunications equipment and services as required by 52.204-24 and reports of identified covered telecommunications equipment and services during contract performance as required by 52.204-25. Representations are estimated to average 0.105 hour (the average of the time for both positive and negative representations) per response to review the prohibitions, research the source of the product or service, and either provide a negative response in the majority of cases or to complete the additional detailed disclosure, if applicable. Reports are estimated to average 1.5 hours per response, including the time for reviewing definitions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the report.
The subsequent 60-day notice to be published by DoD, GSA, and NASA will invite public comments.
A determination has been made under the authority of the Secretary of Defense (DoD), Administrator of General Services (GSA), and the Administrator of the National Aeronautics and Space Administration (NASA) that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. It is critical that the FAR is immediately revised to include the requirements of the law, which prohibits the Federal Government from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service that uses covered telecommunication equipment or services as a substantial or essential component of any system, or as a critical technology as part of any system on or after August 13, 2019, unless an exception applies or a waiver is granted.
Because section 889(a)(1)(A) takes effect on August 13, 2019, this rule must take effect immediately to ensure agencies and contractors are implementing the statutory prohibition.
Pursuant to 41 U.S.C. 1707 and FAR 1.501-3(b), DoD, GSA, and NASA will consider public comments received in response to this interim rule in the formation of the final rule.
Government procurement.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 4, 12, 13, 39, and 52 as set forth below:
40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.
This subpart implements paragraph (a)(1)(A) of section 889 of the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (Pub. L. 115-232).
As used in this subpart—
(1) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation, (or any subsidiary or affiliate of such entities);
(2) For the purpose of public safety, security of Government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities);
(3) Telecommunications or video surveillance services provided by such entities or using such equipment; or
(4) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
(1) Defense articles or defense services included on the United States Munitions List set forth in the International Traffic in Arms Regulations under subchapter M of chapter I of title 22, Code of Federal Regulations;
(2) Items included on the Commerce Control List set forth in Supplement No. 1 to part 774 of the Export Administration Regulations under subchapter C of chapter VII of title 15, Code of Federal Regulations, and controlled—
(i) Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or
(ii) For reasons relating to regional stability or surreptitious listening;
(3) Specially designed and prepared nuclear equipment, parts and
(4) Nuclear facilities, equipment, and material covered by part 110 of title 10, Code of Federal Regulations (relating to export and import of nuclear equipment and material);
(5) Select agents and toxins covered by part 331 of title 7, Code of Federal Regulations, part 121 of title 9 of such Code, or part 73 of title 42 of such Code; or
(6) Emerging and foundational technologies controlled pursuant to section 1758 of the Export Control Reform Act of 2018 (50 U.S.C. 4817).
(a)
(b)
(1) A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or
(2) Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.
(c)
(a)
(b)
(a)
(1) The waiver may be provided, for a period not to extend beyond August 13, 2021, if the Government entity seeking the waiver submits to the head of the executive agency—
(i) A compelling justification for the additional time to implement the requirements under 4.2102(a), as determined by the head of the executive agency; and
(ii) A full and complete laydown or description of the presences of covered telecommunications or video surveillance equipment or services in the relevant supply chain and a phase-out plan to eliminate such covered telecommunications or video surveillance equipment or services from the relevant systems.
(2) The head of the executive agency shall, not later than 30 days after approval, submit to the appropriate congressional committees the full and complete laydown or description of the presences of covered telecommunications or video surveillance equipment or services in the relevant supply chain and the phase-out plan to eliminate such covered telecommunications or video surveillance equipment or services from the relevant systems.
(b)
(a) The contracting officer shall insert the provision at 52.204-24, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment—
(1) In all solicitations for contracts; and
(2) Under indefinite delivery contracts, in all notices of intent to place an order, or solicitations for an order (
(b) The contracting officer shall insert the clause at 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment, in all solicitations and contracts.
(d) * * *
(6) Insert the provision at 52.204-24, Representation Regarding Certain Telecommunications and Video Surveillance Services or Equipment, as prescribed in 4.2105(a).
(a) Agency heads are encouraged to delegate micro-purchase authority (see 1.603-3).
(j) On or after August 13, 2019, do not procure or obtain, or extend or renew a contract to procure or obtain, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception applies or a waiver is granted. (See subpart 4.21.)
(f) On or after August 13, 2019, contracting officers shall not procure or obtain, or extend or renew a contract to procure or obtain, any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential
As prescribed in 4.2105(a), insert the following provision:
(a)
(b)
(1) A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or
(2) Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.
(c)
It [ ] will, [ ] will not provide covered telecommunications equipment or services to the Government in the performance of any contract, subcontract or other contractual instrument resulting from this solicitation.
(d)
(1) All covered telecommunications equipment and services offered (include brand; model number, such as original equipment manufacturer (OEM) number, manufacturer part number, or wholesaler number; and item description, as applicable);
(2) Explanation of the proposed use of covered telecommunications equipment and services and any factors relevant to determining if such use would be permissible under the prohibition in paragraph (b) of this provision;
(3) For services, the entity providing the covered telecommunications services (include entity name, unique entity identifier, and Commercial and Government Entity (CAGE) code, if known); and
(4) For equipment, the entity that produced the covered telecommunications equipment (include entity name, unique entity identifier, CAGE code, and whether the entity was the OEM or a distributor, if known).
As prescribed in 4.2105(b), insert the following clause:
(a)
(1) Telecommunications equipment produced by Huawei Technologies Company or ZTE Corporation (or any subsidiary or affiliate of such entities);
(2) For the purpose of public safety, security of Government facilities, physical security surveillance of critical infrastructure, and other national security purposes, video surveillance and telecommunications equipment produced by Hytera Communications Corporation, Hangzhou Hikvision Digital Technology Company, or Dahua Technology Company (or any subsidiary or affiliate of such entities);
(3) Telecommunications or video surveillance services provided by such entities or using such equipment; or
(4) Telecommunications or video surveillance equipment or services produced or provided by an entity that the Secretary of Defense, in consultation with the Director of National Intelligence or the Director of the Federal Bureau of Investigation, reasonably believes to be an entity owned or controlled by, or otherwise connected to, the government of a covered foreign country.
(1) Defense articles or defense services included on the United States Munitions List set forth in the International Traffic in Arms Regulations under subchapter M of chapter I of title 22, Code of Federal Regulations;
(2) Items included on the Commerce Control List set forth in Supplement No. 1 to part 774 of the Export Administration Regulations under subchapter C of chapter VII of title 15, Code of Federal Regulations, and controlled—
(i) Pursuant to multilateral regimes, including for reasons relating to national security, chemical and biological weapons proliferation, nuclear nonproliferation, or missile technology; or
(ii) For reasons relating to regional stability or surreptitious listening;
(3) Specially designed and prepared nuclear equipment, parts and components, materials, software, and technology covered by part 810 of title 10, Code of Federal Regulations (relating to assistance to foreign atomic energy activities);
(4) Nuclear facilities, equipment, and material covered by part 110 of title 10, Code of Federal Regulations (relating to export and import of nuclear equipment and material);
(5) Select agents and toxins covered by part 331 of title 7, Code of Federal Regulations, part 121 of title 9 of such Code, or part 73 of title 42 of such Code; or
(6) Emerging and foundational technologies controlled pursuant to section 1758 of the Export Control Reform Act of 2018 (50 U.S.C. 4817).
(b)
(c)
(1) A service that connects to the facilities of a third-party, such as backhaul, roaming, or interconnection arrangements; or
(2) Telecommunications equipment that cannot route or redirect user data traffic or permit visibility into any user data or packets that such equipment transmits or otherwise handles.
(d)
(2) The Contractor shall report the following information pursuant to paragraph (d)(1) of this clause:
(i) Within one business day from the date of such identification or notification: The contract number; the order number(s), if applicable; supplier name; supplier unique entity identifier (if known); supplier Commercial and Government Entity (CAGE) code (if known); brand; model number (original equipment manufacturer number, manufacturer part number, or wholesaler number); item description; and any readily available information about mitigation actions undertaken or recommended.
(ii) Within 10 business days of submitting the information in paragraph (d)(2)(i) of this clause: Any further available information about mitigation actions undertaken or recommended. In addition, the Contractor shall describe the efforts it undertook to prevent use or submission of covered telecommunications equipment or services, and any additional efforts that will be incorporated to prevent future use or submission of covered telecommunications equipment or services.
(e)
The revisions and additions read as follows:
(a) * * *
(3) 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (AUG 2019) (Section 889(a)(1)(A) of Pub. L. 115-232).
(e)(1) * * *
(iv) 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (AUG 2019) (Section 889(a)(1)(A) of Pub. L. 115-232).
(e)(1) * * *
(ii) * * *
(D) 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (AUG 2019) (Section 889(a)(1)(A) of Pub. L. 115-232).
The revision and addition read as follows:
(a) * * *
(1) * * *
(iii) 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (AUG 2019) (Section 889(a)(1)(A) of Pub. L. 115-232).
The revision and addition reads as follows:
(c)(1) * * *
(vi) 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (AUG 2019) (Section 889(a)(1)(A) of Pub. L. 115-232).
Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Small Entity Compliance Guide.
This document is issued under the joint authority of DOD, GSA, and NASA. This
August 13, 2019.
A summary for the FAR rule follows. For the actual revisions and/or amendments made by this FAR Case, refer to the specific subject set forth in the document following this item summary. FAC 2019-05 amends the FAR as follows:
This interim rule amends the FAR to implement section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2019 (Pub. L. 115-232). Paragraph (a)(1)(A) of section 889 prohibits agencies from procuring or obtaining, or extending or renewing a contract to procure or obtain, any equipment, system, or service that uses covered telecommunication equipment or services as a substantial or essential component of any system, or as a critical technology as part of any system on or after August 13, 2019, unless an exception applies or a waiver has been granted. Further prohibitions at paragraph (a)(1)(B) of section 889 go into effect August 13, 2020, and will be addressed through separate rulemaking.
To implement paragraph (a)(1)(A) of section 889, this interim rule provides a new solicitation provision and contract clause. The provision at FAR 52.204-24 requires offerors to represent whether their offer includes covered telecommunications equipment or services and if so, to identify additional details about its use. Representations are also required for orders on indefinite delivery contracts. The clause at FAR 52.204-25 prohibits contractors from providing any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as part of any system, unless an exception applies or the covered telecommunications equipment or services are covered by a waiver described in FAR 4.2104. The contractor must also report any such equipment, systems, or services discovered during contract performance; this requirement flows down to subcontractors.
This rule applies to all acquisitions, including acquisitions at or below the simplified acquisition threshold and to acquisitions of commercial items, including commercially available off-the-shelf items. It may have a significant economic impact on a substantial number of small entities.
This interim rule is being implemented as a national security measure to protect Government information, and Government information and communication technology systems.
Contracting officers shall modify certain contracts to include the new FAR clause, as specified in the