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Agricultural Marketing Service, Department of Agriculture (USDA).
Affirmation of interim final rule as final rule.
This final rule adopts, without change, an interim final rule implementing a recommendation from the Raisin Administrative Committee (Committee) to temporarily suspend the continuance referendum requirement under the Federal marketing order for California raisins. This final rule continues in effect the temporary suspension to give precedence to the formal rulemaking process and to provide the California raisin industry time to operate under the marketing order, if amended, before the next scheduled continuance referendum.
Effective January 23, 2024.
Christy Pankey, Marketing Specialist, or Matthew Pavone, Chief, Rulemaking Services Branch, Market Development Division, Specialty Crops Program, AMS, 1400 Independence Avenue SW, Stop 0237, Washington, DC 20250-0237; Telephone: (202) 720-8085 Fax: (202) 720-8938, or Email:
Small businesses may request information on complying with this regulation by contacting Richard Lower, Market Development Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW, STOP 0237, Washington, DC 20250-0237; Telephone: (202) 720-8085, or Email:
This action, pursuant to 5 U.S.C. 553, amends regulations issued to carry out a marketing order as defined in 7 CFR 900.2(j). This rule is issued under Marketing Agreement No. 989 and Marketing Order No. 989, both as amended (7 CFR part 989), hereinafter referred to as the “Order,” and the applicable provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” The Raisin Administrative Committee (Committee) locally administers the Order and is comprised of growers and handlers of raisins operating within the production area and a public member. The Committee consists of 47 members, of whom 35 represent producers, 10 represent handlers, one represents the cooperative bargaining association(s), and one is a public member.
The Agricultural Marketing Service (AMS) is issuing this rule in conformance with Executive Orders 12866, 13563, and 14094. Executive Orders 12866 and 13563 direct agencies to assess costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 14094 reaffirms, supplements, and updates Executive Order 12866 and further directs agencies to solicit and consider input from a wide range of affected and interested parties through a variety of means. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review.
This rule has been reviewed under Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, which requires agencies to consider whether their rulemaking actions would have Tribal implications. AMS has determined that this rule is unlikely to have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes.
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect.
The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under sec. 608c(15)(A) of the Act, any handler subject to an order may file with the Department of Agriculture (USDA) a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. Such handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of the entry of the ruling.
This rule continues in effect the temporary suspension of the continuance referendum requirement under § 989.91(c). On October 20, 2022, the Committee recommended amending the marketing order through formal rulemaking and, in a separate request, recommended the suspension of the continuance referendum scheduled to occur sometime between November 2023 and November 2025. The Committee believes the suspension eliminates any potential confusion among producers who would otherwise be voting in two referenda in a two-year period.
Section 989.91(b) states that the Secretary shall terminate or suspend the operation of any or all provisions of the Order, whenever the Secretary finds that such provisions do not tend to effectuate the declared policy of the Act. Section 989.91(c) specifies the Secretary shall conduct a referendum no less than five crop years and no later than six crop years from November 26, 2018, to ascertain whether continuance of the Order is favored by producers. The requirement also specifies that subsequent referenda be conducted every six crop years thereafter. Under this requirement, the next continuance referendum is scheduled to occur
Alternatively, AMS considered suspending the continuance referendum until immediately after the conclusion of the formal rulemaking. However, this timing would still result in multiple referenda occurring within the same 2-year period, which may cause voter confusion and prevent producers from having adequate time to evaluate any potential effects of the amendatory process before voting on Order continuance. To address these temporal concerns, AMS determined that the suspension of the continuance referendum requirement should extend until 2029, at which point the original timeframe under the Order as discussed in the preceding paragraph will be resumed. Based on that timetable, the next continuance referendum will be conducted sometime between November 2029 and November 2030 to determine whether California raisin producers sufficiently support continuation of the Order.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS considered the economic impact of this action on small entities. Accordingly, AMS prepared this regulatory flexibility analysis.
The purpose of the RFA is to fit regulatory actions to the scale of businesses that are subject to such actions so that small businesses will not be unduly or disproportionately burdened by the action. Marketing orders issued pursuant to the Act, and the rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf.
Presently, there are approximately 18 handlers of raisins subject to regulation under the Order and approximately 2,000 raisin producers in the regulated area.
Small agricultural producers are defined by the Small Business Administration (SBA) as those having annual receipts of less than $4,000,000 (NAICS code 111332, Grape Vineyards). Small agricultural service firms are defined by the SBA as those having annual receipts of less than $34,000,000 (NAICS code 115114, Postharvest Crop Activities) (13 CFR 121.201).
Using USDA National Agricultural Statistics Service (NASS) data, the 2021 season average value of utilized production of California processed raisin-type grapes (most of which are dried into raisins) is $393.649 million. Dividing that figure by 2,000 producers yields an annual average revenue per producer of $196,825, well below the SBA large farm size of threshold of $4,000,000. In terms of annual sales of processed raisin-type grapes, the majority of producers may be classified as small entities.
Dividing the $393.649 million crop value figure by 18 handlers yields an average annual sales per handler estimate of $21,869,389. This annual average sales figure is measured at the producer-level crop value, and to draw conclusions about the proportion of small handlers, a handler margin estimate is needed.
There is no current publicly available estimate of an average raisin handler margin, but a 1988 economic study of the California raisin industry estimated producer-handler average margins of about 30 percent for bulk raisin shipments and about 60 percent for packaged shipments. Current handler margins are likely somewhat smaller, since the study was completed more than three decades ago, and current bulk handling and packaging technologies are more efficient.
An alternative method to compute an average handler margin for packaged raisins is to compare the NASS season average grower price per ton for processed raisin-type grapes (converted to its dried weight equivalent) with an average price per ton for packaged raisins that USDA paid under its Commodity Procurement Program in recent years ($1.41 per pound, $2,820 per ton). The NASS 2021 season average grower price for raisin-type grapes was $369 per ton. Using a standard conversion factor of 4.62 to convert to a dried-weight equivalent, the price per ton for raisins is $1,705 ($369 * 4.62). A computed handler margin estimate is 65 percent ($2,820/$1,705−1). Since the Commodity Procurement average price includes shipping cost to recipient locations, the 65 percent margin is moderately overstated.
If a handler had annual raisin sales of exactly $34 million (the SBA large firm size threshold) that would mean a handler margin of 55 percent above the producer level ($34,000,000/$21,869,389).
Since both abovementioned margin estimates for packaged raisin shipments (60 and 65 percent) are close to the 55 percent margin implied by the $34 million SBA size threshold, it can be concluded that there are raisin handlers with annual sales both above and below the size threshold. It is reasonable to assume that fewer than 9 of the 18 handlers have annual raisin sales well above $34 million. Therefore, more than 9, a majority of handlers, have raisin sales below $34 million and may be classified as small entities.
This rule continues in effect the temporary suspension of the continuance referendum requirement under section 989.91(c). The Committee recommended this action to avoid the scheduled referendum period overlapping with the formal rulemaking to amend the Order and any potential confusion it would otherwise cause producers. After considering the Committee's request, AMS determined the scheduled continuance referendum should be suspended while AMS conducts a formal rulemaking to amend the Order and, if effectuated, while the industry operates under such amended Order.
Section 989.91(b) authorizes the Secretary to terminate or suspend the operation of any or all provisions of the Order whenever the Secretary finds that such provisions do not tend to effectuate the declared policy of the act.
An interim final rule concerning this action was published in the
This final rule continues in effect the temporary suspension of the continuance referendum requirement under § 989.91(c) of the Federal marketing order regulating the handling of raisins produced from grapes grown in California. The next scheduled continuance referendum will be
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the Order's information collection requirements have been previously approved by OMB and assigned OMB No. 0581-0178, Vegetable and Specialty Crops. No changes to those requirements are necessary as a result of this rule. Should any changes become necessary, they would be submitted to OMB for approval.
This final rule does not impose any additional reporting or recordkeeping requirements on either small or large raisin handlers. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. AMS has not identified any relevant Federal rules that duplicate, overlap, or conflict with this final rule.
AMS is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.
A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at:
After consideration of all relevant material presented, including the information and recommendations submitted by the Committee and other available information, it is hereby found that finalizing the interim final rule, without change, as published in the
Grapes, Marketing agreements, Raisins, Reporting and recordkeeping requirements.
Consumer Financial Protection Bureau.
Advisory opinion.
The Consumer Financial Protection Bureau (CFPB or Bureau) is issuing this advisory opinion to address certain obligations that consumer reporting agencies have under section 609(a) of the Fair Credit Reporting Act (FCRA). This advisory opinion underscores that, to trigger a consumer reporting agency's file disclosure requirement under FCRA section 609(a), a consumer does not need to use specific language, such as “complete file” or “file.” This advisory opinion also highlights the requirements regarding the information that must be disclosed to a consumer under FCRA section 609(a). In addition, this advisory opinion affirms that consumer reporting agencies must disclose to a consumer both the original source and any intermediary or vendor source (or sources) that provide the item of information to the consumer reporting agency under FCRA section 609(a).
This advisory opinion is effective on January 23, 2024.
Amanda Quester, Alexandra Reimelt, or Ruth Van Veldhuizen, Senior Counsels, Office of Regulations at (202) 435-7700 or
The Bureau is issuing this advisory opinion through the procedures for its Advisory Opinions Policy.
The FCRA regulates consumer reporting.
The FCRA also promotes transparency of the credit reporting system to consumers in many ways, including by generally requiring that consumer reporting agencies disclose to consumers all information in their file upon request. Under section 609(a), a consumer reporting agency must, upon request, clearly and accurately disclose to the consumer “[a]ll information in the consumer's file at the time of the request” and “[t]he sources of the information.”
The FCRA defines a consumer's “file” as “all of the information on that consumer that is recorded and retained by a consumer reporting agency, regardless of how the information is stored.”
Section 609(a)'s file disclosure requirements are central to the statute's accuracy, fairness, and privacy purposes. Consumers have a right to see the information consumer reporting agencies keep about them in their files at any time. Absent file disclosure requirements, a consumer may not be able to review their file, determine whether it contains any incomplete or inaccurate information, and, if it does, file a dispute under FCRA sections 611 and 623, and have the information corrected or deleted.
Consumers may suffer significant harm when they are unable to obtain all information in their files upon request. Without access to all information in their file, a consumer often cannot even take the initial steps to dispute inaccurate information in their consumer reports or take well-informed action to improve their credit profile. Disputing inaccurate information on a consumer report and improving one's credit profile, often challenging and time-consuming processes for consumers, are made even more difficult when consumers do not have access to all of the information in their file. For example, if a consumer identifies an error in an item of information in their file, but the consumer reporting agency has only disclosed to the consumer the original source of the information and not also the vendor source that directly provided the information to the consumer reporting agency and from which the error arose, the consumer would not be able to identify the source of the erroneous information and may not be able to correct it.
The CFPB is issuing this advisory opinion to highlight certain file disclosure requirements imposed under FCRA section 609(a). First, this advisory opinion underscores that, to trigger a consumer reporting agency's file disclosure requirement under FCRA section 609(a), a consumer does not need to use specific language, such as “complete file” or “file.” Next, this advisory opinion highlights the requirements regarding the information that must be disclosed to a consumer under FCRA section 609(a). Finally, this advisory opinion affirms that consumer reporting agencies must disclose to a consumer both the original source and any intermediary or vendor source (or sources) that provide the item of information to the consumer reporting agency under FCRA section 609(a).
This advisory opinion applies to all “consumer reporting agencies,” as that term is defined in FCRA section 603(f).
Section 609(a) of the FCRA provides, with certain exceptions, that “[e]very consumer reporting agency shall, upon request . . . clearly and accurately disclose to the consumer, among other things: (1) All information in the consumer's file at the time of the request . . .; and (2) The sources of the information.” Section 610 in turn specifies the conditions and form of
To obtain a file disclosure, the FCRA does not require consumers to use any specific language. Instead, the statute requires consumers to do two things: make a “request” and provide proper identification.
The statute does not define the term “request” as used in section 609(a). In construing the term's meaning, the Bureau is guided by the statute's broad remedial purposes.
[C]onsumers could only access their files pursuant to [section 609(a)] if they are familiar with the esoteric distinction between “files” and “consumer reports” in the Definitions section of the FCRA. Construing [section 609(a)] in this way would severely limit consumers' “access to . . . information in [their] file” and frustrate their ability to know when they are “being damaged by an adverse credit report,” or to “correct[] inaccurate information” in their report.
Thus, to obtain a file disclosure under section 609(a), a consumer need not specifically request “[a]ll information in the consumer's file” or request a “complete file” or even use the word “file.” For example, a consumer's request to a consumer reporting agency for a “report” or “credit report” or “consumer report” or “file” or “record,” along with proper identification, trigger a consumer reporting agency's obligation under section 609(a).
The CFPB's interpretation of section 609(a)—that consumers do not need to use the words “file” or “complete file” to invoke their right to a file disclosure—is consistent with the way Congress itself refers to section 609(a) requests in parts of the FCRA. Although section 609(a) requires disclosure of all information in the consumer's “file” (with only limited, specified exceptions), Congress used the term “consumer report” as a short-hand term for the disclosures required by section 609(a) in some sections that refer to consumer requests and consumer-facing materials.
Section 609(a) of the FCRA generally requires consumer reporting agencies to, upon request, “clearly and accurately” disclose “all information in the consumer's file at the time of the request.” To meet this standard, a file disclosure must be understandable to the average consumer.
Some consumers are experiencing difficulty in obtaining clear, accurate, and complete file disclosures, particularly from background screening companies. As discussed below, in this advisory opinion the Bureau is highlighting that (1) section 609(a)(1) of the FCRA requires that a consumer reporting agency clearly and accurately disclose to a consumer all information in the consumer's file at the time of the request, including, among other things, all information the consumer reporting agency provided or might provide to a user, and (2) when a consumer reporting agency provides only summarized information to a user, section 609(a)(1) of the FCRA requires that the consumer reporting agency provide the consumer with the information that formed the
Section 609(a) generally requires a consumer reporting agency to provide a consumer with a file disclosure that, among other things, accurately reflects the information the consumer reporting agency provided or might provide to a user.
Additionally, there are a number of situations under the FCRA where a consumer reporting agency must provide information that is not or would not be included in a user report when providing a file disclosure under FCRA section 609(a).
If a consumer reporting agency disclosed nothing to a consumer when it only provided summarized information to a user, the consumer would be unaware of the records upon which the summarized information was based, undermining the consumer's ability to exercise their right to dispute any incomplete or inaccurate information contained in their file.
The Bureau's interpretations regarding information required to be disclosed under section 609(a)(1) are consistent with the FCRA's purposes. When initially passing the FCRA, Congress stated that “under this bill credit reporting agencies are required to make full disclosure to the consumer of all of the information obtained. The consumer will then be given the opportunity to correct inaccurate or misleading data.”
Section 609(a) of the FCRA generally requires consumer reporting agencies to, upon request, disclose all information in the consumer's file at the time of the request and the sources of the information.
The CFPB's interpretation is based on the plain language of FCRA section 609(a)(2) itself, which refers to “sources” in the plural. The statute does not limit this requirement to “a source” or “the original source” of the information.
Additionally, and as described in part I.C.1, a consumer does not need to use specific language to trigger a consumer reporting agency's obligations under FCRA section 609(a)(2). As such, consumers do not need to specifically request that consumer reporting agencies identify
The Bureau's interpretation also is consistent with the FCRA's purposes. Congress passed the FCRA in part to “prevent consumers from being unjustly
In addition to provisions authorizing Federal and State enforcement,
This advisory opinion is an interpretive rule issued under the Bureau's authority to interpret the FCRA, including under section 1022(b)(1) of the Consumer Financial Protection Act of 2010,
The Bureau has determined that this advisory opinion does not impose any new or revise any existing recordkeeping, reporting, or disclosure requirements on covered entities or members of the public that would be collections of information requiring approval by the Office of Management and Budget under the Paperwork Reduction Act.
Pursuant to the Congressional Review Act,
Consumer Financial Protection Bureau.
Advisory opinion.
The Consumer Financial Protection Bureau (CFPB or Bureau) is issuing this advisory opinion to affirm that, when preparing consumer reports, a consumer reporting agency that reports public record information is not using reasonable procedures to assure maximum possible accuracy under section 607(b) of the Fair Credit Reporting Act (FCRA) if it does not have certain procedures in place. For example, it must have procedures that prevent reporting of information that is duplicative or that has been expunged, sealed, or otherwise legally restricted from public access. This advisory opinion also highlights certain aspects of the reporting period for adverse items under FCRA section 605(a)(5).
This advisory opinion is effective on January 23, 2024.
Seth Caffrey, Amanda Quester, or Ruth Van Veldhuizen, Senior Counsels, Office of Regulations at (202) 435-7700 or
The Bureau is issuing this advisory opinion
The majority of landlords and employers conduct background checks before renting property or hiring employees.
Background screening companies vary in size, the users they serve, the services they provide, and the geographic regions they cover.
In many instances, background screening reports contain inaccurate information about consumers.
Some background screening reports also include arrests, convictions, or other court records that should not be included because they have been expunged or sealed or otherwise legally restricted from public access.
Background screening companies sometimes also include obsolete criminal record information in background screening reports.
When these types of information appear in background screening reports, the consequences for consumers can be grave. Consumers' rental housing applications may be denied, or they may end up paying more for such housing or be limited to locations or types of rental housing that they would not otherwise have selected, all of which is particularly challenging for consumers in a market characterized by high rents.
In 1970, Congress enacted the Fair Credit Reporting Act (FCRA) to protect against these types of harms. The FCRA regulates consumer reporting and imposes obligations on consumer reporting agencies, the entities that furnish information to them, and the users of consumer reports.
Because of the importance of consumer report accuracy to businesses and consumers, the structure of the FCRA creates interrelated legal standards and requirements to support the goal of accurate credit reporting. Among these is the requirement that, when preparing a consumer report, consumer reporting agencies “shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.”
The CFPB is issuing this advisory opinion to underscore certain obligations that the FCRA imposes when background screening reports are provided and used. First, this advisory opinion highlights that consumer reporting agencies must comply with their FCRA obligation to “follow reasonable procedures to assure maximum possible accuracy” under section 607(b). In particular, a consumer reporting agency that reports public record information is not using reasonable procedures to assure maximum possible accuracy if it does not have reasonable procedures in place to ensure that (1) it does not report information that is duplicative or that has been expunged, sealed, or otherwise legally restricted from public access in a manner that would prevent the user from obtaining it directly from the government entities that maintain the records and (2) it includes any existing disposition information if it reports arrests, criminal charges, eviction proceedings, or other court filings.
Second, consistent with prior cases and guidance discussed below, this advisory opinion highlights that, when consumer reporting agencies include adverse information in consumer reports, the occurrence of the adverse event starts the running of the reporting period for adverse items under FCRA section 605(a)(5), which is not restarted or reopened by the occurrence of subsequent events. Moreover, a non-conviction disposition
This advisory opinion applies to all “consumer reporting agencies,” as that term is defined in FCRA section 603(f).
FCRA section 607(b) provides that “[w]henever a consumer reporting agency prepares a consumer report it shall follow reasonable procedures to assure maximum possible accuracy of the information concerning the individual about whom the report relates.”
To comply with section 607(b) of the FCRA, consumer reporting agencies must have reasonable procedures in place to prevent duplicative information from being reported on consumer reports in order to ensure that reports do not inaccurately suggest that a single event occurred more than once. For example, inclusion of multiple entries for the same criminal conviction or the same eviction can wrongly suggest that a consumer was convicted or evicted more than once. Consumer reporting agencies that obtain information from multiple sources, or from a single source that in turn collects information from multiple sources, must take particular care to identify information that is duplicative to ensure that information is accurately presented in consumer reports. Similarly, when a consumer reporting agency reports multiple stages of the same court proceeding, it must have procedures in place to ensure that information regarding the stages of these court proceedings (such as an arrest followed by a conviction) is presented in a way that makes clear the stages all relate to the same proceeding or case and does not inaccurately suggest that multiple proceedings or cases have occurred. For example, at a minimum, such procedures should require that all information about one court case should be collated and presented together in manner that makes it clear it is a single case.
When arrests, criminal charges, eviction proceedings, or other court filings are reported, consumer reporting agencies must also have reasonable procedures in place to check for any available disposition information and to ensure that such information is included.
Similar considerations apply with respect to expunged records, sealed records, and public records that are otherwise legally restricted from public access. Background screening companies are responsible for maintaining procedures that ensure that any inclusion of charges or arrest records in a consumer report complies with the law in the relevant jurisdiction from which the record originates. To “expunge” means to remove from a record or to erase or destroy.
Consumer reporting agencies that report public record information are not using reasonable procedures to assure maximum possible accuracy if they do not have reasonable procedures in place to prevent the inclusion in consumer reports of information that has been expunged, sealed, or otherwise legally restricted from public access in a manner that would prevent the user from obtaining it directly from the government entity that maintains the records. These procedures could include, for example, reporting only newly-gathered information or cross-checking existing data against updated sources so that matters that have been sealed or expunged can be identified and removed. In some instances, consumer reporting agencies may also be able to request lists of expunged matters from the original source and then remove those matters from their databases.
The CFPB and the Federal Trade Commission (FTC) have brought several cases illustrating the aspects of section 607(b) discussed in this advisory opinion.
Additionally, the CFPB and the FTC alleged in a recent action that a rental screening company, TURSS, violated the FCRA by failing to follow reasonable procedures to assure maximum possible accuracy of information in background screening reports relied on by landlords and others.
The FCRA restricts a consumer reporting agency from including obsolete information in a consumer report.
As the plain language of section 605(a)(5) makes clear, each adverse item of information is subject to its own seven-year reporting period, the timing of which depends on the date of the “adverse item” itself.
Moreover, in the case of a non-conviction disposition of criminal charges, the disposition does not start its own seven-year reporting period.
This interpretation also follows from the structure of section 605(a) and a 1998 amendment to that provision. The contrast between section 605(a)(5) and several other paragraphs of section 605(a), in which Congress prescribed a different rule for specific categories of information, is instructive. For paid tax liens, the reporting period ends seven years “from date of payment”;
In addition to provisions authorizing Federal and State enforcement,
This advisory opinion is an interpretive rule issued under the Bureau's authority to interpret the FCRA, including under section 1022(b)(1) of the Consumer Financial Protection Act of 2010,
The Bureau has determined that this advisory opinion does not impose any new or revise any existing recordkeeping, reporting, or disclosure requirements on covered entities or members of the public that would be collections of information requiring approval by the Office of Management and Budget under the Paperwork Reduction Act.
Pursuant to the Congressional Review Act,
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is adopting a new airworthiness directive (AD) for certain Airbus SAS Model A330-200, A330-200 Freighter, A330-300, A330-800, and A330-900 series airplanes. This AD was prompted by a determination that part of a certain production ground test procedure used to confirm inner fuel tank integrity was not accomplished properly on certain airplanes. This AD requires a fuel tank leak test and, depending on findings, accomplishment of applicable corrective action, as specified in a European Union Aviation Safety Agency (EASA) AD, which is incorporated by reference. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective February 27, 2024.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of February 27, 2024.
• For EASA material incorporated by reference in this AD, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
• For Airbus SAS service information identified in this AD, contact Airbus
• You may view this material at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available in the AD docket at
Vladimir Ulyanov, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: 206-231-3229; email:
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus SAS Model A330-200, A330-200 Freighter, A330-300, A330-800, and A330-900 series airplanes. The NPRM published in the
In the NPRM, the FAA proposed to require a fuel tank leak test and, depending on findings, accomplishment of applicable corrective action, as specified in EASA AD 2023-0052. The FAA is issuing this AD to address lack of inner fuel tank integrity that, in the case of an uncontained engine rotor failure and subsequent fuel tank puncture, could lead to insufficient fuel available to ensure continued safe flight and landing.
You may examine the MCAI in the AD docket at
The FAA received a comment from Air Line Pilots Association, International, who supported the NPRM without change.
The FAA received an additional comment from Delta Air Lines (DAL). The following presents the comment received on the NPRM and the FAA's response.
DAL requested that two discrepancies in the service information be corrected. DAL noted that the reference to “R(L) INNER TK” should be changed to “L(R) INNER TK,” and there is a discrepancy in the range of possible capacitance values for inner tank probe 6. DAL asserted that these errors make it impossible for the required actions to be accomplished.
The FAA agrees. Paragraph (h)(4) has been added to this AD to change the reference to “L(R) INNER TK.” Paragraph (h)(5) has been added to this AD to remove the requirement to measure the capacitance values for inner tank probe 6 FIN 24QT1 (FIN 24QT2). Airbus has advised that these errors will be corrected in a future revision.
This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data, considered the comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.
EASA AD 2023-0052 specifies procedures for performing a leak test of the inner fuel tanks for discrepancies (
Airbus Service Bulletin A330-28-3141, dated December 16, 2022, specifies serial numbers of affected airplanes.
This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA estimates that this AD affects 128 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA has received no definitive data on which to base the cost estimates for the on-condition actions specified in this 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 AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) 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 amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective February 27, 2024.
None.
This AD applies to Airbus SAS airplanes, certificated in any category, specified in paragraphs (c)(1) through (5) of this AD, and with serial numbers identified in Airbus Service Bulletin A330-28-3141, dated December 16, 2022.
(1) Model A330-201, -202, -203, -223, and -243 airplanes.
(2) Model A330-223F and -243F airplanes.
(3) Model A330-301, -302, -303, -321, -322, -323, -341, -342, and -343 airplanes.
(4) Model A330-841 airplanes.
(5) Model A330-941 airplanes.
Air Transport Association (ATA) of America Code 28, Fuel.
This AD was prompted by a determination that the differential pressure test across Rib 3, part of the production ground test procedure used to confirm inner fuel tank integrity, had not been properly accomplished on airplanes delivered before July 2021. The FAA is issuing this AD to address lack of inner fuel tank integrity that, in the case of an uncontained engine rotor failure and subsequent fuel tank puncture, could lead to insufficient fuel available to ensure continued safe flight and landing.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2023-0052, dated March 14, 2023 (EASA AD 2023-0052).
(1) Where EASA AD 2023-0052 refers to its effective date, this AD requires using the effective date of this AD.
(2) This AD does not adopt the “Remarks” section of EASA AD 2023-0052.
(3) Where the service information referenced in EASA AD 2023-0052 specifies repeating a step and recording certain values, replace the text “Do step 1 b again and record the capacitance values and then every 10 minutes for 60 min,” with “Repeat step 1 b and record the capacitance values every 10 minutes for 60 minutes.”
(4) Where the service information referenced in EASA AD 2023-0052 specifies “Set the R(L) INNER TK (FIN 6QU1)(FIN 6QU2) switch to OPEN,” this AD requires replacing that text with “Set the L(R) INNER TK (FIN 6QU1)(FIN 6QU2) switch to OPEN.”
(5) Where the service information referenced in EASA AD 2023-0052 specifies measuring certain capacitance values, this AD does not require measuring the capacitance values for inner tank probe 6 FIN 24QT1 (FIN 24QT2).
Although the service information referenced in EASA AD 2023-0052 specifies to submit certain information to the manufacturer, this AD does not include that requirement.
The following provisions also apply to this AD:
(1)
(2)
(3)
For more information about this AD, contact Vladimir Ulyanov, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: 206-231-3229; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Airbus Service Bulletin A330-28-3141, dated December 16, 2022.
(ii) European Union Aviation Safety Agency (EASA) AD 2023-0052, dated March 14, 2023.
(3) For EASA AD 2023-0052, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 8999 000; email
(4) For Airbus service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, Rond-Point Emile Dewoitine No: 2, 31700 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email
(5) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(6) You may view this service information at the National Archives and Records
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is adopting a new airworthiness directive (AD) for all Bombardier, Inc., Model BD-100-1A10 airplanes. This AD was prompted by reports from the supplier that some overheat detection sensing elements of the bleed air leak detection system were manufactured with insufficient salt fill, which can result in an inability to detect hot bleed air leaks. This AD requires revising the existing airplane flight manual (AFM) to include procedures to prevent takeoff with an active bleed air leak annunciated while on the ground. This AD also requires testing the overheat detection sensing elements, marking each serviceable sensing element with a witness mark, and replacing each nonserviceable part with a serviceable part. This AD also prohibits the installation of affected parts. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective February 27, 2024.
The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of February 27, 2024.
• For Bombardier service information identified in this final rule, contact Bombardier Business Aircraft Customer Response Center, 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-2999; email
• For Liebherr-Aerospace Toulouse SAS service information identified in this AD, contact Liebherr-Aerospace Toulouse SAS, 408, Avenue des Etats-Unis—B.P.52010, 31016 Toulouse Cedex, France; telephone +33 (0)5.61.35.28.28; fax +33 (0)5.61.35.29.29; email
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th Street, Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available at
Steven Dzierzynski, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; email
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all Bombardier, Inc., Model BD-100-1A10 airplanes. The NPRM published in the
In the NPRM, the FAA proposed to require revising the existing AFM to include procedures to prevent takeoff with an active bleed air leak annunciated while on the ground. The FAA also proposed to require testing the overheat detection sensing elements, marking each serviceable sensing element with a witness mark, and replacing each nonserviceable part with a serviceable part. The FAA also proposed to prohibit the installation of affected parts. The FAA is issuing this AD to address the unsafe condition on these products.
You may examine the MCAI in the AD docket at
The FAA received a comment from an anonymous commenter who has experience troubleshooting and maintaining environmental control systems (bleed air). No changes to the AD were requested. The commenter stated revising the AFM procedures will prevent costly maintenance and implementing extra safety features will also be cost effective and favor pilot safety. The FAA infers that the commenter supports the AD.
This product has been approved by the aviation authority of another country and is approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on this product. Except for minor editorial changes, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.
The FAA reviewed Liebherr Service Bulletin CFD-F1958-26-01, dated May 6, 2022, which specifies part numbers for affected sensing elements.
Bombardier has issued the following service information. This service information describes procedures to prevent the takeoff of an airplane with an active bleed air leak annunciated while on the ground. These documents are distinct since they apply to different airplane models.
• Section 05-42, Air Conditioning & Pressurization, Non-Normal Procedures Section, Bombardier Challenger 300 AFM (Imperial Version), Publication No. CSP 100-1, Revision 71, dated November 9, 2022. (For obtaining the procedures for Bombardier Challenger 300 AFM (Imperial Version), Publication No. CSP 100-1, use Document Identification No. CH 300 AFM-I.)
• Section 05-42, Air Conditioning & Pressurization, Non-Normal Procedures Section, Bombardier Challenger 350 AFM, Publication No. CH 350 AFM, Revision 37, dated November 9, 2022. (For obtaining the procedures for Bombardier Challenger 350 AFM, Publication No. CH 350 AFM, use Document Identification No. CH 350 AFM.)
The FAA also reviewed Bombardier Service Bulletin 100-36-10, dated December 23, 2022; and Bombardier Service Bulletin 350-36-003, dated December 23, 2022; which specify procedures for testing each leak detection loop sensing element installed on the airplane, marking each serviceable sensing element with a witness mark, and replacing each nonserviceable part with a serviceable part. These documents are distinct since they apply to different airplane models.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA estimates that this AD affects 317 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA has received no definitive data on which to base the cost estimates for the on-condition actions specified in this AD. The FAA estimates it would take up to 1.5 hours to replace one sensor.
The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected operators.
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 AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) 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 amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective February 27, 2024.
None.
This AD applies to all Bombardier, Inc., Model BD-100-1A10 airplanes, certificated in any category.
Air Transport Association (ATA) of America Code: 36, Pneumatic.
This AD was prompted by reports from the supplier that some overheat detection sensing elements of the bleed air leak detection system were manufactured with insufficient salt fill. The FAA is issuing this AD to address non-conforming sensing elements of the bleed air leak detection system. The unsafe condition, if not addressed, could result in an inability to detect hot bleed air leaks and consequent damage to surrounding structures and systems, which could prevent continued safe flight and landing.
Comply with this AD within the compliance times specified, unless already done.
(1) For purposes of this AD, an affected part is a sensing element marked with a date code A0448 through A2104 inclusive and having an LTS/Kidde part number specified in Liebherr Service Bulletin CFD-F1958-26-01, dated May 6, 2022, unless that sensing element meets the criteria specified in either paragraph (g)(1)(i) or (ii) of this AD.
(i) The sensing element has been tested as specified in Section 3 of the Accomplishment Instructions of Kidde Aerospace and Defense Service Bulletin CFD-26-1, Revision 6, dated February 28, 2022, or earlier revisions, and has been found to be serviceable; and the sensing element has been marked on one face of its connector hex nut and packaged as specified in Section 3.C. of the Accomplishment Instructions of Kidde Aerospace and Defense Service Bulletin CFD-26-1, Revision 6, dated February 28, 2022, or earlier revisions.
(ii) The sensing element has been tested and found to be serviceable as specified in paragraph (i) of this AD; and the sensing element has been marked on one face of one connector hex nut with one green mark, as specified in Figure 11 of Bombardier Service Bulletin 100-36-10, dated December 23, 2022, or Bombardier Service Bulletin 350-36-003, dated December 23, 2022, as applicable (the figure is representative for all sensing elements).
(2) For purposes of this AD, a serviceable part is a sensing element that is not an affected part.
For airplane serial numbers 20001 through 20457 inclusive and 20501 through 20906 inclusive: Within 30 days after the effective date of this AD, revise the existing AFM to include the information specified in paragraphs (h)(1) and (2) of this AD, as applicable.
(1) For airplane serial numbers 20001 through 20457 inclusive: Section 05-42, Air Conditioning & Pressurization, Non-Normal Procedures Section, Bombardier Challenger 300 AFM (Imperial Version), Publication No. CSP 100-1, Revision 71, dated November 9, 2022.
(2) For airplane serial numbers 20501 through 20906 inclusive: Section 05-42, Airconditioning & Pressurization, Non-Normal Procedures Section, Bombardier Challenger 350 AFM, Publication No. CH 350 AFM, Revision 37, dated November 9, 2022.
For airplane serial numbers 20001 through 20457 inclusive and 20501 through 20906 inclusive: Within 7,500 flight cycles or 96 months, whichever occurs first, from the effective date of this AD, test the overheat detection sensing elements to determine if they are serviceable, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 100-36-10, dated December 23, 2022; or Bombardier Service Bulletin 350-36-003, dated December 23, 2022, as applicable.
(1) For each sensing element that is serviceable, before further flight, mark the sensing element with a witness mark in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 100-36-10, dated December 23, 2022; or Bombardier Service Bulletin 350-36-003, dated December 23, 2022; as applicable.
(2) For each sensing element that is not serviceable, before further flight, replace the sensing element with a serviceable part in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 100-36-10, dated December 23, 2022; or Bombardier Service Bulletin 350-36-003, dated December 23, 2022; as applicable.
As of the effective date of this AD, no person may install an affected part on any airplane.
Although Bombardier Service Bulletin 100-36-10, dated December 23, 2022; and Bombardier Service Bulletin 350-36-003, dated December 23, 2022; specify to submit certain information to the manufacturer, this AD does not include that requirement.
The following provisions also apply to this AD:
(1)
(2)
(1) Refer to Transport Canada AD CF-2023-09, dated February 14, 2023, for related information. This Transport Canada AD may be found in the AD docket at
(2) For more information about this AD, contact Steven Dzierzynski, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; email
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless this AD specifies otherwise.
(i) Bombardier Service Bulletin 100-36-10, dated December 23, 2022.
(ii) Bombardier Service Bulletin 350-36-003, dated December 23, 2022.
(iii) Section 05-42, Air Conditioning & Pressurization, Non-Normal Procedures Section, Bombardier Challenger 300 AFM (Imperial Version), Publication No. CSP 100-1, Revision 71, dated November 9, 2022.
(iv) Section 05-42, Air Conditioning & Pressurization, Non-Normal Procedures Section, Bombardier Challenger 350 AFM, Publication No. CH 350 AFM, Revision 37, dated November 9, 2022.
(v) Liebherr Service Bulletin CFD-F1958-26-01, dated May 6, 2022.
(3) For Bombardier service information identified in this AD, contact Bombardier Business Aircraft Customer Response Center, 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; telephone 514-855-2999; email
(4) For Liebherr-Aerospace Toulouse SAS service information identified in this AD, contact Liebherr-Aerospace Toulouse SAS, 408, Avenue des Etats-Unis—B.P.52010, 31016 Toulouse Cedex, France; telephone +33 (0)5.61.35.28.28; fax +33 (0)5.61.35.29.29; email
(5) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 2200 South 216th Street, Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(6) You may view this material at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, visit
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is superseding Airworthiness Directive (AD) 2023-01-
This AD is effective February 27, 2024.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of February 27, 2024.
• For service information identified in this final rule, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; phone: +49 221 8999 000; email:
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call (817) 222-5110. It is also available at
Barbara Caufield, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: (781) 238-7146; email:
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2023-01-07, Amendment 39-22301 (88 FR 2501, January 17, 2023; corrected February 3, 2023 (88 FR 7355); corrected February 16, 2023 (88 FR 10013)) (AD 2023-01-07). AD 2023-01-07 applied to GEAC Model H75-100, H75-200, H80, H80-100, H80-200, H85-100, and H85-200 engines. AD 2023-01-07 required revising the ALS of the existing EMM and the operator's existing approved maintenance or inspection program, as applicable, to incorporate the updated coefficients and recalculate the cycles accumulated on critical parts. The FAA issued AD 2023-01-07 to prevent failure of the engine.
The NPRM published in the
You may examine the MCAI in the AD docket at
In the NPRM, the FAA proposed to require accomplishing the actions specified in the MCAI described previously, except for any differences identified as exceptions in the regulatory text of the proposed AD.
The FAA received no comments on the NPRM or on the determination of the costs.
These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI referenced above. The FAA reviewed the relevant data and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, this AD is adopted as proposed in the NPRM.
The FAA reviewed EASA AD 2023-0021, which specifies procedures for operators to revise the ALS of the existing EMM and the operator's existing approved engine maintenance or inspection program, as applicable, to incorporate new and more restrictive instructions and associated thresholds and intervals for life-limited parts, as applicable to each engine model.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
The FAA estimates that this AD affects 33 engines installed on airplanes of U.S. registry.
The FAA estimates the following costs to comply with this 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.
The FAA has determined that this AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) 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 amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective February 27, 2024.
This AD replaces AD 2023-01-07, Amendment 39-22301 (88 FR 2501, January 17, 2023; corrected February 3, 2023 (88 FR 7355); corrected February 16, 2023 (88 FR 10013)).
This AD applies to GE Aviation Czech s.r.o. (type certificate previously held by WALTER Engines a.s., Walter a.s., and MOTORLET a.s.) Model H75-100, H75-200, H80, H80-100, H80-200, H85-100, and H85-200 engines.
Joint Aircraft System Component (JASC) Code 7200, Engine (Turbine/Turboprop).
This AD was prompted by the manufacturer revising the airworthiness limitations section (ALS) of the existing engine maintenance manual (EMM) to introduce new and more restrictive airworthiness limitations and associated thresholds and intervals for life-limited parts. The FAA is issuing this AD to prevent failure of the engine. The unsafe condition, if not addressed, could result in uncontained release of a critical part, damage to the engine, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) Except as specified in paragraph (h) of this AD: Perform all required actions within the compliance times specified in, and in accordance with, European Union Aviation Safety Agency (EASA) AD 2023-0021, dated January 23, 2023 (EASA AD 2023-0021).
(2) The action required by paragraph (g)(1) of this AD may be performed by the owner/operator (pilot) holding at least a private pilot certificate and must be entered into the aircraft records showing compliance with this AD in accordance with 14 CFR 43.9(a) and 91.417(a)(2)(v). The record must be maintained as required by 14 CFR 91.417, 121.380, or 135.439.
(1) Where EASA AD 2023-0021 defines the AMP as “the approved Aircraft Maintenance Programme containing the tasks on the basis of which the scheduled maintenance is conducted to ensure the continuing airworthiness of each operated engine,” for this AD, replace that text with, “the aircraft maintenance program containing the tasks on the basis of which the scheduled maintenance is conducted to ensure the continuing airworthiness of each operated airplane.”
(2) Where EASA AD 2023-0021 defines the ALS as “the Airworthiness Limitations Section of GEAC EMM No. 0983402 Revision 25, dated November 21, 2022,” for this AD, replace that text with, “the airworthiness limitations section of GEAC EMM No. 0983402 Revision 26, dated February 1, 2023.” The ALS in Revision 26 of the EMM is unchanged from Revision 25 of the EMM.
(3) Where EASA AD 2023-0021 refers to its effective date, this AD requires using the effective date of this AD.
(4) Where paragraph (3) of EASA AD 2023-0021 specifies revising “the approved AMP within 12 months after the effective date of EASA AD 2023-0021,” replace that text with, “the ALS of the existing approved engine maintenance or inspection program, as applicable, within 90 days after the effective date of this AD.”
(5) This AD does not require compliance with paragraphs (1), (2), (4), and (5) of EASA AD 2023-0021.
(6) This AD does not adopt the Remarks paragraph of EASA AD 2023-0021.
After performing the actions required by paragraph (g) of this AD, no alternative actions and associated thresholds and intervals, including life limits, are allowed unless they are approved as specified in the provisions of the “Ref. Publications” section of EASA AD 2023-0021.
(1) The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, send it to the attention of the person identified in paragraph (k) of this AD and email to
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Barbara Caufield, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: (781) 238-7146; email:
(1) The Director of the Federal Register approved the incorporation by reference of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) European Union Aviation Safety Agency (EASA) AD 2023-0021, dated January 23, 2023.
(ii) [Reserved]
(3) For EASA AD 2023-0021, contact EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; phone: +49 221 8999 000; email:
(4) You may view this service information at FAA, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this material at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, visit
Federal Aviation Administration (FAA), DOT.
Final rule.
The FAA is adopting a new airworthiness directive (AD) for certain General Electric Company (GE) Model GE90-90B, GE90-94B, GE90-110B1, and GE90-115B engines. This AD was prompted by a manufacturer investigation that revealed certain high-pressure turbine (HPT) stage 1 disks, HPT stage 2 disks, forward HPT rotor seals, interstage HPT seals, and stages 7-9 compressor rotor spools were manufactured from powder metal material suspected to contain iron inclusion. This AD requires replacement of affected HPT stage 1 disks, HPT stage 2 disks, forward HPT rotor seals, interstage HPT seals, and stages 7-9 compressor rotor spools. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective February 27, 2024.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of February 27, 2024.
• For service information identified in this final rule, contact General Electric Company, 1 Neumann Way, Cincinnati, OH 45215; phone: (513) 552-3272; email:
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call (817) 222-5110. It is also available at
Alexei Marqueen, Aviation Safety Engineer, FAA, 2200 South 216th Street, Des Moines, WA 98198; phone: (781) 238-7178; email:
The FAA issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain GE Model GE90-90B, GE90-94B, GE90-110B1, and GE90-115B engines. The NPRM published in the
The FAA received comments from five commenters. Commenters included
FedEx and GE requested that the FAA add the following service information to the NPRM in a section designated as Other Related Service Information: GE GE90-100 Service Bulletin (SB) 72-0904 R00, dated May 25, 2022; GE GE90-100 SB 72-0911 R01, dated September 21, 2022; and GE GE90 SB 72-1223, dated January 25, 2023. FedEx and GE both noted that Table 1 to Paragraph (c) of the proposed AD listed affected components that were partially copied from those GE SBs, and not including mention of those GE SBs could cause confusion for operators, even though additional GE SBs would not be incorporated by reference.
The FAA agrees and for the ease of the reader, instead of including these additional GE SBs in a section identified as Other Related Service Information in the preamble, has added Note 1 to paragraph (c) of this AD to include the three additional GE SBs identified by the commenters and to clarify that the affected parts can also be found in these additional GE SBs. These additional GE SBs will not be incorporated by reference in this AD.
GE requested that the FAA update Table 1 to Paragraph (c) of the proposed AD by changing the part number (P/N) for an affected HPT stage 1 disk having serial number (S/N) GWN10NNW from “1865M13G08” to “2445M04G11.” GE noted that the HPT stage 1 disk with S/N GWN10NNW was repaired and re-marked to P/N 2445M04G11.
The FAA agrees and has updated Table 1 to Paragraph (c) of this AD as requested by GE.
GE requested that the FAA add language to the Background section of the NPRM to clarify that GE communicated with affected operators having affected HPT stage 1 and stage 2 disks identified in Table 1 to Paragraph (c) of the proposed AD regarding the proposed corrective action for the identified unsafe condition. GE noted that the current language in the NPRM does not specify that the affected disks are identified in Table 1 to Paragraph (c) of the proposed AD, and additional HPT stage 2 disks are identified in General Electric GE90-100 Service Bulletin 72-0914, dated January 25, 2023, which could cause a misinterpretation of the required actions on HPT stage 2 disks.
The FAA agrees and has revised the language in the Background section of this final rule accordingly.
The FAA reviewed the relevant data, considered any comments received, and determined that air safety requires adopting this AD as proposed. Accordingly, the FAA is issuing this AD to address the unsafe condition on these products. Except for minor editorial changes, and any other changes described previously, this AD is adopted as proposed in the NPRM. None of the changes will increase the economic burden on any operator.
The FAA reviewed GE GE90-100 Service Bulletin (SB) 72-0914, dated January 25, 2023 (GE GE90-100 SB 72-0914); which provides the affected part and serial numbers of the HPT stage 2 disks, forward HPT rotor seals, and stages 7-9 compressor rotor spools; and specifies replacement instructions for the HPT stage 2 disks, forward HPT rotor seals, and stages 7-9 compressor rotor spools. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
The FAA considers this AD to be an interim action. This unsafe condition is still under investigation by the manufacturer and, depending on the results of that investigation, the FAA may consider further rulemaking action.
The FAA estimates that this AD affects 9 engines installed on airplanes of U.S. registry. The FAA estimates that 0 engines installed on airplanes of U.S. registry require replacement of the interstage HPT seal.
The FAA estimates the following costs to comply with this 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 AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) 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 amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This airworthiness directive (AD) is effective February 27, 2024.
None.
This AD applies to General Electric Company (GE) Model GE90-90B and GE90-94B engines with interstage HPT seals listed in Table 1 to Paragraph (c) of this AD and GE90-110B1 and GE90-115B engines with an installed high-pressure turbine (HPT) stage 1 disk, HPT stage 2 disk, forward HPT rotor seal, or stages 7-9 compressor rotor spool part number (P/N) and serial number (S/N) identified in Table 1 to Paragraph (c) of this AD, or identified in Paragraph 4. APPENDIX—A, Tables 1, 2, or 3, of GE GE90-100 Service Bulletin (SB) 72-0914, dated January 25, 2023 (GE90-100 SB 72-0914).
Joint Aircraft System Component (JASC) Code 7230, Turbine Engine Compressor Section; 7250, Turbine Section.
This AD was prompted by a manufacturer investigation that revealed certain HPT stage 1 disks, HPT stage 2 disks, forward HPT rotor seals, interstage HPT seals, and stages 7-9 compressor rotor spools were manufactured from powder metal material suspected to contain iron inclusion. The FAA is issuing this AD to prevent premature fracture and subsequent uncontained failure. The unsafe condition, if not addressed, could result in uncontained debris release, damage to the engine, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
At the applicable times specified in paragraphs (g)(1) through (6) of this AD, remove each affected HPT stage 1 disk, HPT stage 2 disk, forward HPT rotor seal, interstage HPT seal, and stages 7-9 compressor rotor spool from service and replace with a part eligible for installation.
(1) For HPT stage 1 disks, before further flight.
(2) For HPT stage 2 disks with a part number and serial number identified in Paragraph 4. APPENDIX—A, Table 1 of GE90-100 SB 72-0914, at the next piece part exposure or before exceeding 3,500 cycles since new (CSN), whichever occurs first.
(3) For HPT stage 2 disks with a part number and serial number identified in Table 1 to paragraph (c) of this AD, before further flight.
(4) For forward HPT rotor seals with a part number and serial number identified in Paragraph 4. APPENDIX—A, Table 3 of GE90-100 SB 72-0914, at the next piece part exposure or before exceeding 14,200 CSN, whichever occurs first.
(5) For interstage HPT seals, at the next piece part exposure or before exceeding 12,600 CSN, whichever occurs first.
(6) For stages 7-9 compressor rotor spools, at the next piece part exposure or before exceeding the cyclic removal thresholds identified in Paragraph 4. APPENDIX—A, Table 2 of GE90-100 SB 72-0914, whichever occurs first.
For the purpose of this AD, a “part eligible for installation” is any HPT stage 1 disk, HPT stage 2 disk, stages 7-9 compressor rotor spool, forward HPT rotor seal, or interstage HPT seal with a part number and serial number that is not identified in paragraph (c) of this AD.
(1) The Manager, AIR-520 Continued Operational Safety Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of AIR-520 Continued Operational Safety Branch, send it to the attention of the person identified in paragraph (j) of this AD and email to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local Flight Standards District Office/certificate holding district office.
For more information about this AD, contact Alexei Marqueen, Aviation Safety Engineer, FAA, 2200 South 216th Street, Des Moines, WA 98198; phone: (781) 238-7178; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) General Electric GE90-100 Service Bulletin 72-0914, dated January 25, 2023.
(ii) [Reserved]
(3) For service information identified in this AD, contact General Electric Company, 1 Neumann Way, Cincinnati, OH 45215; phone: (513) 552-3272; email:
(4) You may view this service information at FAA, Airworthiness Products Section, Operational Safety Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, visit:
Bureau of Industry and Security, Department of Commerce.
Final rule.
The Bureau of Industry and Security (BIS) is amending the Export Administration Regulations (EAR) by removing three persons, including one under the destination of Canada, one under the destination of People's Republic of China (China), and one under the destination of the United Arab Emirates, from the Unverified List (UVL) because BIS was able to verify their bona fides.
This rule is effective on January 19, 2024.
Kevin J. Kurland, Deputy Assistant Secretary for Export Enforcement, Phone: (202) 482-4255 or by email at
The UVL, found in supplement no. 6 to part 744 of the EAR (15 CFR parts 730-774), contains the names and addresses of foreign persons who are or have been parties to a transaction, as described in § 748.5 of the EAR, involving the export, reexport, or transfer (in-country) of items subject to the EAR. These foreign persons are added to the UVL because BIS or federal officials acting on BIS's behalf were unable to verify their bona fides (
As set forth in the EAR, there are any number of reasons why these checks cannot be completed to the satisfaction of the U.S. Government. Section 744.15(c)(1) of the EAR provides illustrative examples of those circumstances, including reasons unrelated to the cooperation of the foreign party subject to the end-use check. Such examples include: (i) During the conduct of an end-use check, the subject of the check is unable to demonstrate the disposition of items subject to the EAR; (ii) The existence or authenticity of the subject of an end-use check cannot be verified (
BIS's inability to confirm the bona fides of foreign persons subject to end-use checks raises concerns about the suitability of such persons as participants in future exports, reexports, or transfers (in-country) of items subject to the EAR; it also indicates a risk that such items may be diverted to prohibited end-uses and/or end-users. Under such circumstances, there may not be sufficient information to add the foreign person at issue to the Entity List under § 744.11 of the EAR. Therefore, BIS may add the foreign person to the UVL.
As provided in § 740.2(a)(17) of the EAR, the use of license exceptions for exports, reexports, and transfers (in-country) involving a party or parties to the transaction who are listed on the UVL is suspended. Additionally, under § 744.15(b) of the EAR, there is a requirement for exporters, reexporters, and transferors to obtain (and maintain a record of) a UVL statement from a party or parties to the transaction who are listed on the UVL before proceeding with exports, reexports, and transfers (in-country) to such persons, when the exports, reexports and transfers (in-country) are not subject to a license requirement. Finally, pursuant to § 758.1(b)(8), Electronic Export Information (EEI) must be filed in the Automated Export System (AES) for all exports of tangible items subject to the EAR where any party to the transaction, as described in § 748.5(d) through (f), is listed on the UVL.
Requests for the removal of a UVL entry must be made in accordance with § 744.15(d) of the EAR. Decisions regarding the removal or modification of a UVL entry will be made by the Deputy Assistant Secretary for Export Enforcement, based on a demonstration by the listed person of their bona fides.
This final rule removes three persons from the UVL because BIS was able to verify their bona fides. This rule
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This final rule has been deemed not significant for purposes of Executive Order 12866.
This rule does not contain policies with Federalism implications as that term is defined under Executive Order 13132.
Notwithstanding any other provision of law, no person is required to respond to, nor is subject to a penalty for failure to comply with, a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The UVL additions contain collections of information approved by OMB under the following control numbers:
BIS believes that the overall increases in burdens and costs will be minimal and will fall within the already approved amounts for these existing collections. Additional information regarding these collections of information—including all background materials—can be found at
Pursuant to Section 1762 of ECRA (50 U.S.C. 4821), this action is exempt from the Administrative Procedure Act (5 U.S.C. 553) requirements for notice of proposed rulemaking and opportunity for public participation.
Further, no other law requires notice of proposed rulemaking or opportunity for public comment for this final rule. Because a notice of proposed rulemaking and an opportunity for public comment are not required under the Administrative Procedure Act or by any other law, the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601
Exports, Reporting and recordkeeping requirements, Terrorism.
Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730 through 774) is amended as follows:
50 U.S.C. 4801-4852; 50 U.S.C. 4601
Consumer Product Safety Commission.
Final rule.
The Consumer Product Safety Act (CPSA), as amended by the Consumer Product Safety Improvement Act of 2008 (CPSIA), required the Consumer Product Safety Commission (CPSC or the Commission) to publish, as a mandatory consumer product safety standard, the American National Standard for Four-Wheel All-Terrain Vehicles (ATVs) developed by the Specialty Vehicle Institute of America (ANSI/SVIA 1-2007). CPSC published that mandatory consumer product safety standard in November 2008. In March 2023, ANSI/SVIA issued a 2023 edition of its standard. In accordance with the CPSA, CPSC is issuing this final rule to amend the Commission's mandatory ATV standard to reference the 2023 edition of the ANSI/SVIA 1 standard.
This rule is effective on January 1, 2025. The incorporation by reference of the publication listed in this rule is approved by the Director of the Federal Register as of January 1, 2025.
William Cusey, Small Business Ombudsman, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, Maryland 20814; telephone: 301-504-7833; email:
Section 42 of the CPSA, as amended by section 232 of the CPSIA, directed the Commission to “publish in the
Section 42(b) of the CPSA provides that if ANSI/SVIA 1-2007 is revised after the Commission has published a
In 2012, the Commission revised part 1420 in accordance with the revision procedures set out in the CPSA, to reference the 2010 edition of the ANSI/SVIA 1 standard. 77 FR 12197 (February 29, 2012). In 2018, the Commission published a final rule that amended the mandatory ATV standard to reference the 2017 edition of the ANSI/SVIA 1 standard. 83 FR 8336 (February 27, 2018).
On March 21, 2023, SVIA notified the Commission of its publication of a revised ATV standard, ANSI/SVIA 1-2023. On July 27, 2023, the Commission published a proposed rule (NPR), 88 FR 48398, to amend part 1420 to reference the 2023 edition of the ANSI/SVIA 1 standard. In the NPR, the Commission described the material changes made in ANSI/SVIA 1-2023: requirements for hot surfaces; requirements for fuel systems; removal of the maximum recommended tire pressure of 69 kPa (10 psi); and removal of the current requirement that paper user manuals be provided with all ATVs—all with an effective date “beginning with 2026 model year vehicles.”
ANSI/SVIA 1-2023 Section 12, Hot Surfaces, newly requires all categories of ATVs to meet surface temperature limits. The July 27, 2023, Staff Briefing Package: Notice of Proposed Rulemaking (NPR) to Amend the All-Terrain Vehicle (ATV) Standard (Staff's NPR Briefing Package)
Section 12 provides a method to evaluate the increase in surface temperatures that occurs when an ATV is subjected to a driving test. This test evaluates the heat generated from a test vehicle's components, including the exhaust and engine components, when the vehicle is driven for 30 minutes at a maximum speed of 20 mph. After the driving portion of this test, whether performed on a test track or chassis dynamometer, the test instrumentation records surface temperature data throughout the “heat soak” period, during which the heat load generated by the exhaust and surrounding components transfer to other parts of the ATV. The performance requirement in Section 12 limits the maximum temperatures for various touch points per Table 1:
These surface temperature limits are comparable to those that apply to other consumer products that can pose contact burn hazards. The ANSI Z21.1-2018
ATVs equipped with gasoline-fueled engines can have fuel breaches from various locations including fuel hose connections, fuel tank cracks, and fuel filter cracks, among others. The 2023 edition of the ANSI/SVIA standard adds performance requirements to mitigate the risk of fuel leaks and fire hazards. Section 13 of ANSI/SVIA 1-2023, Fuel Systems Requirements, specifies comprehensive performance requirements applicable to various elements of the vehicle's fuel system that may contribute to fuel leaks and fire hazards. No previous edition of ANSI/SVIA 1 has included performance requirements to address fire hazards from fuel leaks.
The new performance requirements to mitigate fuel leaks are the following:
•
•
•
•
Most of these requirements are one-time design qualification tests. The one-time qualification tests require manufacturers to conduct a single test for certification that the design of a fuel system meets all the applicable requirements, after which components of individual vehicles may be manufactured to those design specifications without further testing. Only the Section 13.3 Fuel Tank Immersion Leak Test and 13.4 Fuel Filter and Shut-off Valve Immersion Leak Test must be performed on each fuel tank unit before they are installed on a manufacturer's ATV production line.
The one-time qualification tests to evaluate fuel tank structural integrity performance involve impacts, cyclical pressure to simulate ambient temperature fluctuations, elevated temperature environments, and simulated rollover scenarios. The required tests evaluate the leakage rates of rollover vent valves in rollover scenarios; the integrity of fuel hose connections; fuel filters and fuel shutoff valves' ability to resist leakage; and elastomeric (rubber) components' ability to resist ultraviolet (UV), ozone, and chemical exposures. The NPR Staff Briefing Package provides detailed explanations of the various subsections of Section 13 that will mitigate fire risks from fuel leaks.
The fuel system performance requirements in Section 13 are directed at reducing the risk of fuel leaks due to possible fuel breaches, over pressurizations, fuel spills, and component deterioration. Thus, in the NPR, the Commission preliminarily concluded that the fuel system performance requirements in Section 13 of the 2023 edition of the ANSI/SVIA standard are reasonably related to the safe performance of ATVs and recommended including this revision in the final rule.
Section 4.19 Tires of the 2007, 2010, and 2017 editions of the ANSI/SVIA 1 standard defined “low-pressure tires” as “having a recommended tire pressure of no more than 69 kPa (10 psi).” Section 4.19 of the 2017 standard differentiates between Pneumatic Tires (Section 4.19.1) and Non-Pneumatic Tires (NPTs) (Section 4.19.2) and sets a Pneumatic Tire requirement of “Maximum recommended tire pressure of 69 kPa (10 psi).” Section 4.19.2 specifies “NPTs [
In the NPR, the Commission preliminarily concluded that the removal of a maximum tire pressure from the ANSI/SVIA 1-2023 standard is reasonably related to the safe performance of ATVs and not detrimental to ATV safety, and accordingly proposed including this revision in the final rule.
The 2023 edition of ANSI/SVIA 1 removes a phrase stating that mandatory owner's manuals “may be supplemented at the manufacturer's option in electronic form viewable on a display on the ATV or other device,” which was added to the 2017 edition. Section 4.21 of the 2023 revision instead states that “[a]ll ATVs shall be provided with a manual in paper
Based on the increased risk of consumers not receiving information on the safe use of ATVs if that information is only electronically available, the Commission preliminarily concluded in the NPR that this provision is not consistent with the safe operation of ATVs and proposed maintaining in effect the 2017 version of Section 4.21.
The CPSA provides a timetable for the Commission to issue an NPR (within 120 days of receiving notification of a revised ANSI/SVIA standard) and to issue a final rule (within 180 days of publication of the proposed rule), but it does not establish requirements for effective dates. When the Commission adopted the 2010 revision to the ANSI/SVIA standard, it set an effective date of 60 days from publication of the final rule. 77 FR 12197. The Commission set that date after considering comments from several ATV companies to allow them additional time to update their certification labels. When the Commission adopted the 2017 revision to the ANSI/SVIA standard, it set an effective date of January 1, 2019, approximately 10 months after publication of the final rule, after considering SVIA's comments about the time needed for manufacturers to make the required changes. 83 FR 8336 (Feb. 27, 2018).
The ANSI/SVIA 1-2023 standard provides that the revised voluntary standard is effective beginning with the 2026 model year. However, it does not set a specific date. In the NPR, the Commission proposed a specific effective date of September 1, 2024. The proposed effective date was based on staff's assessment of the time needed to comply with changes to the safety standard, the need for a date certain to facilitate industry planning, and that the proposed effective date was reasonably related to consumer safety. The proposed rule's effective date also was based on staff's assessment that many ATVs already meet some of the new requirements in ANSI/SVIA 1-2023, and the changes from the 2017 to the 2023 voluntary standard will not require significant redesign or testing, both of which facilitate timely compliance.
The Commission preliminarily concluded in the NPR that its proposed effective date was reasonable, feasible, and adequate to protect consumer safety because:
• All ATVs' gasoline powered engines and associated components sold in the U.S. are regulated by the U.S. Environmental Protection Agency (EPA) for exhaust and evaporative emissions, s
• The NPR's proposed effective date would allow adequate time for resolution of supply chain issues, quality control issues, and any other issues that might arise.
• The timeline in the Commission's proposed rule incorporating by reference the SVIA 1-2023 standard was similar to the timeline for its rule incorporating by reference the SVIA 1-2017 standard update. In June 2017, SVIA notified the Commission of the 2017 edition of the SVIA-1 standard. The final rule established an effective date of January 1, 2019, which was 18 months from start to finish (comparable to the NPR's proposed interval).
The Commission received comments on the NPR from 11 commenters. Some comments are not relevant to any of the material changes in the ANSI/SVIA 1-2023 standard, described above. Below, the Commission summarizes and
For example, to mitigate fuel hoses sliding off during operation, Section 13.10 requires fuel hoses to retain connection to a hose barb or other fuel fitting, such as a fuel rail nozzle, when subjected to a 30 lb. tensile (pull) test. This 30-lb pull test requirement would protect a fuel hose from sliding off in scenarios such as: engine vibrations; vegetation or other debris getting caught around a fuel hose; or due to an owner inadvertently pulling on a hose during inspection of the vehicle.
To resist fuel tank cracking or other forms of fuel breach from the fuel tank, unprotected areas of fuel tanks are subjected to a new impact test per Section 13.7.1 of ANSI/SVIA 1-2023. An ATV manufacturer has two options for performing this test: (i) striking the fuel tank surface with a 2-inch diameter, 1.18 lb. sphere (
Section 13.7.2 outlines a performance test that positions a fuel tank filled with water at a 90° angle from the horizontal. The fuel tank and its components, such as hoses and valves, are required to not have any leakage in order to pass this test. This test evaluates the potential fuel leakage scenarios of an ATV that has rolled over.
Section 13.15 evaluates fuel leakage from a rollover vent valve. A test fuel tank filled with water is positioned upside down and the fuel tank is observed for leakage from the rollover vent valve.
The Commission finds that the various performance tests of Section 13 of ANSI/SVIA 1-2023 simulate real world scenarios and promote fuel systems' structural integrity. Furthermore, the commenters have not recommended any alternative test methods that are improvements over the current Section 13 performance requirements. Thus, the final rule adopts Section 13 of ANSI/SVIA 1-2023, without change, as part of the mandatory standard.
Conversely, SRS and CFA support maintaining owner's manuals on paper as the default medium. In particular, CFA states:
The default must be paper manuals. Anything less, including an electronic format only manual, is a serious reduction in [safety]. Considering the use of these vehicles—hunting, fishing, camping, trailing riding, and other outdoor recreation—consumers need access to paper manuals if they encounter issues where there is no internet or electronic devices are unavailable.
The Commission accordingly determines that this revision in ANSI/SVIA 1-2023 is not reasonably related to the safe performance of ATVs because it would reduce the safety of using ATVs. Consistent with the NPR, the Commission will retain the requirement for a paper owner's manual, as stated in Section 4.21 of the ANSI/SVIA 1-2017. Manufacturers are free to supplement the paper manuals with electronic manuals to achieve the additional benefits identified by SVIA.
In June 2017, SVIA notified the Commission of publication of the 2017 edition of the ANSI/SVIA 1 standard. The final rule established an effective date of January 1, 2019, which was 18 months from notification by SVIA to the effective date. That revision included significant changes to the ANSI/SVIA 1 standard, including new requirements for stop lamps or combination tail-stop lamps on specified ATVs as well as reflector requirements for all ATVs. Nothing in SVIA's comments or elsewhere in the record suggests that manufacturers had difficulty complying with the 2017 revision on that timeline. Compared to the Commission's successfully implemented rule adopting the 2017 revision, the January 1, 2025, effective date for this rule provides manufacturers more time to comply: The period from SVIA's notification of the revision to the effective date is longer; the period from publication of the NPR to the effective date is longer; and the period from publication of this final rule to the effective date is longer.
The ANSI/SVIA 1-2023 standard was developed by SVIA member companies, an ATV test laboratory, a consumer advocacy group, individual ATV users, and U.S. and Canadian Government agencies through a consensus process. The consensus process started in September 2018 and ended in March 2023.
Nevertheless, the Commission takes SVIA's point that model year cycles are relevant to the industry. Accordingly, to align with the successful implementation of the 2017 revision, the September 1, 2024, effective date in the NPR will be extended to January 1, 2025. This makes the rule effective on the first of the calendar year. Just as with the 2017 revision, the rule will take effect at exactly the same time in the model year.
The particulars of the 2023 standard revision provide CPSC additional confidence that the January 1, 2025, date can be met. Because ATVs' gasoline engines and associated components sold in the U.S. are regulated by the EPA for exhaust and evaporative emissions, they will be exempt from the Fuel Tank Cyclic Pressure Integrity Test per Section 13.5 of ANSI/SVIA 1-2023. In addition, due to existing EPA regulations, most ATV manufacturers will already satisfy some of the new criteria of ANSI/SVIA 1-2023 with no additional effort.
Further, nearly all the fuel system performance requirements in Section 13 of the ANSI/SVIA 1-2023 are one-time proof of design qualification verification tests that do not burden manufacturers with production line testing of every fuel system component or fuel system assembly. There are only a few tests, such as the water immersion fuel tank leakage test in Section 13.3, that require every fuel tank to be tested.
Finally, similar fuel system requirements for other off-highway vehicle voluntary standards have had effective dates as short as 12 months after publication of the voluntary standard. For example, the 2012 edition of the golf car standard, ANSI/ILTVA (International Light Transportation Vehicle Association) Z130.1-2012, had an effective date of one year after publication of the voluntary standard. Section 11.3.5 of that standard includes the same rollover vent leakage test as Section 13.15 of the ANSI/SVIA 1-2023 standard. The history of industry compliance with the 12-month effective date for ANSI/ILTVA Z130.1-2012 supports the feasibility of the final rule`s timeframe.
For all these reasons, and having considered the comments as discussed above, the final rule establishes an effective date of January 1, 2025. This date balances the commenter's pragmatic concerns against the safety benefit of updating the mandatory standard to protect consumers from harm.
Mariam Grace (commenter ID CPSC-2017-0032-0040) recommends that to ensure safe operation of ATVs, the Commission should set minimum age requirements for their use and require extensive training for the safe operation of ATVs. The Toy Association (commenter ID CPSC-2017-0032-0043) notes that the definition of a “youth
The final rule revises 16 CFR 1420.3(a), “Requirements for four-wheel ATVs,” to incorporate by reference the ANSI/SVIA 1-2023 standard, instead of the ANSI/SVIA 1-2017 standard. ANSI/SVIA 1-2023 contains requirements and test methods relating to ATVs, including vehicle equipment and configuration, vehicle speed capability, brake performance, pitch stability, electromagnetic compatibility, sound level limits, hot surfaces, and fuel systems. Revisions incorporated into ANSI/SVIA 1-2023 are described in section II of this preamble. The final rule, however, maintains the requirement for paper manuals in ANSI/SVIA 1-2017.
The Commission has set an effective date of January 1, 2025, requiring that all ATVs manufactured on or after January 1, 2025, must comply with the final rule.
The Regulatory Flexibility Act (RFA) generally requires that agencies review a proposed rule for its potential economic impact on small entities, including small businesses. The NPR explained that the most significant changes in the 2023 revision of the voluntary standard involve requirements for fuel systems and hot surfaces and CPSC's analysis is that many ATVs already comply with some of these requirements, and therefore the primary cost to manufacturers would be the costs of one-time design qualification tests and production part testing. Because, however, none of the 14 domestic ATV manufacturers the Commission identified meet Small Business Association (SBA) criteria to be considered a small business, CPSC preliminarily assessed that the proposed rule would not have a significant adverse economic impact on any domestic small ATV manufacturers. CPSC further assessed that foreign manufacturers are unlikely to exit the ATV market and are likely to issue General Certificates of Conformity (GCCs), such that the rule would not have a significant, adverse economic impact on ATV importers. 88 FR 48398, 48401-02. The Commission requested comments with data supporting or refuting whether there are ATV manufacturers that may meet the SBA criteria to be considered small businesses.
No commenter identifies any ATV manufacturer that may meet the SBA criteria to be considered a small business. The Commission also did not receive any comments addressing whether the proposed rule will have a significant economic impact on a substantial number of small entities. Accordingly, consistent with the NPR, the Commission certifies that the final rule will not have a significant economic impact on a substantial number of small entities.
This rule contains no new information collection requirements. Accordingly, this rule is not subject to the Paperwork Reduction Act of 1995 (PRA; 44 U.S.C. 3501-3521). The Commission did not receive any comments on the PRA burden estimate included in the NPR; therefore, in this final rule, the Commission presents its analysis of its PRA burden included in the NPR, which remains the same, with only minor corrections to the calculations for information purposes. Other CPSC rulemaking, using different sets of assumptions, generate estimates in the same range. The Commission did not receive any comments on the PRA burden estimate included in the NPR.
The rule amends the ATV standard to mandate industry compliance with ANSI/SVIA 1-2023. The standard's requirements include provisions that fall within the definition of “collection of information,” as defined in 44 U.S.C. 3502(3). Under the PRA, an agency must publish the following information for a collection of information:
• title;
• summary;
• brief description of the need for the information and the use of the information;
• description of the likely respondents and frequency of response to the collection of information;
• estimate of the burden that shall result from the collection of information; and
• notice that comments may be submitted to the Office of Budget Management (OMB).
This information appears below.
This section describes the development of staff's burden estimates summarized in Table 2, above.
Section 14 of the CPSA requires manufacturers and importers of ATVs to prepare GCCs. Based on current ATV action plans filed with CPSC, there are 38 entities that supply, or intend to supply, ATVs to the U.S. market. Staff found evidence of ATV sales activity, in the form of actual sales or advertisement for sale, for only 32 of the 38 entities. Nevertheless, taking a conservative approach, staff assumed that all 38 entities (both manufacturers and importers) are currently supplying ATVs to the U.S. market and used this number to estimate the burden hours and annual cost associated with GCCs. ATV manufacturers typically produce one GCC that covers all the models of a model year, which implies the number of PRA responses is one per entity, per year. Staff estimates the time required to produce this GCC is about 1.5 person hours per year. Therefore, the estimated burden associated with GCCs is 57 person hours (38 entities × 1 GCC per year × 1.5 hours per GCC = 57 person hours). To generate the estimated annual cost to industry associated with GCCs, staff multiplied the estimated number of burden hours by $36.80, the total hourly compensation for sales and office workers in goods-producing private industries.
In the event a foreign manufacturer chooses not to conduct required certification testing and/or provide documentation to support preparation of the GCC, its importer could choose to conduct its own certification testing. However, staff considers this scenario unlikely, and for several of the importers, cost prohibitive. Therefore, staff assumes entities conducting certification testing and associated recordkeeping are limited to ATV manufacturers. Based on 2020 sales data,
Staff estimates the average life cycle of an ATV model is approximately five years, which implies each manufacturer will conduct one-time design qualification testing on approximately 1.9 models per year (239 models ÷ 25 entities ÷ 5 years = 1.912, or about 1.9 models per entity per year). Staff estimates the time required to create and maintain certification records to be approximately eight person hours per model. Therefore, the estimated labor burden associated with certification testing recordkeeping is approximately 382 person hours (25 entities × 1.912 ATV models per year × 8 person hours per model = 382.4 person hours). As above, staff multiplied the estimated number of burden hours by $36.80, the total hourly compensation for sales and office workers in goods-producing private industries. The estimated annual cost to industry associated with certification testing recordkeeping is approximately $14,072 ($36.80 per person hour × 382.34 person hours = $14,072.32).
Based on this analysis, the final rule would impose an annual burden to industry of approximately 439 hours per year (57 for preparation of the GCC and 382.4 hours for recordkeeping associated with the certification tests upon which the GCCs are based). The estimated annual cost is approximately $16,170 ($2,097.6 and $14,072.32 for GCC preparation and certification testing recordkeeping, respectively).
The above estimates are a conservative estimate of the average annual burden to ATV entities. The rule requires all ATVs manufactured on or after January 1, 2025, to comply with ANSI/SVIA 1-2023. Therefore, in the first year following promulgation of the rule, existing entities may be required to redesign and test more than the estimated average 48 models per year and incur higher costs than the estimates in this PRA analysis. In subsequent years, costs could be less, as a fewer number of ATV models will require design updates.
As stated above, CPSC did not receive any comments on the PRA burden estimate. CPSC has submitted the information collection requirements of this final rule to OMB for review in accordance with PRA requirements. 44 U.S.C. 3507(d).
The Commission's regulations provide a categorical exemption for the Commission's rules from any requirement to prepare an environmental assessment or an environmental impact statement as they “have little or no potential for affecting the human environment.” 16 CFR 1021.5(c)(1). This amendment falls within the categorical exemption.
The OFR has regulations concerning incorporation by reference. 1 CFR part 51. For a final rule, agencies must discuss in the preamble to the rule ways that the materials the agency incorporates by reference are reasonably available to interested persons and how
In accordance with the OFR's requirements, this preamble summarizes the provisions of ANSI/SVIA 1-2023, American National Standard for Four Wheel All-Terrain Vehicles, ANSI-approved March 17, 2023, that the Commission is incorporating by reference. ANSI/SVIA 1-2023 is copyrighted. Interested people may purchase a copy of ANSI/SVIA 1-2023 from Specialty Vehicle Institute of America, 2 Jenner, Suite 150, Irvine, CA 92618-3806; telephone: 949-727-3727 ext. 3023;
Section 26(a) of the CPSA, 15 U.S.C. 2075(a), provides that when a consumer product safety standard is in effect and applies to a product, no state or political subdivision of a state may either establish or continue in effect a standard or regulation that prescribes requirements for the performance, composition, contents, design, finish, construction, packaging, or labeling of such product dealing with the same risk of injury unless the state requirement is identical to the Federal standard. Section 26(c) of the CPSA also provides that states or political subdivisions of states may apply to the Commission for an exemption from this preemption under certain circumstances. Section 42 of the CPSA establishes that the rules to be issued for ATVs under that section are “consumer product safety standards.” Therefore, the preemption provision of section 26(a) of the CPSA applies to this final rule.
The CPSA establishes requirements for product certification and testing. Certification of children's products subject to a children's product safety rule must be based on testing conducted by a CPSC-accepted third-party conformity assessment body. 15 U.S.C. 2063(a)(2). The Commission is required to publish a notice of requirements (NOR) for the accreditation of third-party conformity assessment bodies to assess conformity with any children's product safety rule to which a children's product is subject.
The Congressional Review Act (CRA; 5 U.S.C. 801-808) states that, before a rule may take effect, the agency issuing the rule must submit the rule, and certain related information, to each House of Congress and the Comptroller General. 5 U.S.C. 801(a)(1). The submission must indicate whether the rule is a “major rule.” The Office of Information and Regulatory Affairs (OIRA) determines whether a rule qualifies as a “major rule.” 5 U.S.C. 804(2). Pursuant to the CRA, OIRA determined that this rule is not a major rule. To comply with the CRA, CPSC will submit the required information to each House of Congress and the Comptroller General.
Consumer protection, Imports, Incorporation by reference, Infants and children, Information, Labeling, Law enforcement, Recreation and recreation areas, Reporting and recordkeeping requirements, Safety.
For the reasons stated in the preamble, the Commission amends part 1420 of title 16 of the Code of Federal Regulations as follows:
15 U.S.C. 2089.
This part, a consumer product safety standard, prescribes requirements for all-terrain vehicles.
(a) Each new assembled or unassembled ATV manufactured before January 1, 2025, shall comply with all applicable provisions of the American National Standard for Four-Wheel All-Terrain Vehicles (ANSI/SVIA 1-2017), ANSI-approved on June 8, 2017. Each new assembled or unassembled ATV manufactured on or after January 1, 2025, shall comply with all applicable provisions of the American National Standard for Four-Wheel All-Terrain Vehicles ANSI-approved on March 17, 2023 (ANSI/SVIA 1-2023), with the exception of Section 4.21 Owner's Manual, as to which it shall continue to comply with the ANSI/SVIA 1-2017 standard. ANSI/SVIA 1-2017 and ANSI/SVIA 1-2023 are incorporated by reference into this section with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. This material is available for inspection at the U.S. Consumer Product Safety Commission and at the National Archives and Records Administration (NARA). Contact the U.S. Consumer Product Safety Commission at: Office of the Secretary, U.S. Consumer Product Safety Commission, 4330 East West Highway, Bethesda, MD 20814, telephone: (301) 504-7479. For information on the availability of this material at NARA, email:
Food and Drug Administration, HHS.
Final rule; confirmation of effective date.
The Food and Drug Administration (FDA or we) is confirming the effective date of December 4, 2023, for the final rule that appeared in the
The effective date of December 4, 2023, for the final rule published in the
For access to the docket to read background documents or comments received, go to
Shayla West-Barnette, Office of Food Additive Safety (HFS-255), Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-1262.
In the
We gave interested persons until December 4, 2023, to file objections or requests for a hearing. We received no objections or requests for a hearing on the final rule. Therefore, we find that the effective date of the final rule that published in the
Color additives, Cosmetics, Drugs, Foods, Medical devices.
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of linuron in or on alfalfa, forage and alfalfa, hay. Tessenderlo Kerley, Inc. requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective January 23, 2024. Objections and requests for hearings must be received on or before March 25, 2024, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2022-0134, is available at
Charles Smith, Director, Registration Division (7505T), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (202) 566-1030; email address:
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2022-0134 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing and must be received by the Hearing Clerk on or before March
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2022-0134, by one of the following methods:
•
•
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Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
Section 408(b)(2)(A)(i) of FDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for linuron including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with linuron follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. The toxicological database for linuron is robust and the data requirements are satisfied. With repeated oral dosing in test animals, linuron produces three primary effects: (1) changes in the hematopoietic system in dogs, rats, and mice; (2) changes in the male reproductive system in developing rats; and (3) decreases in T
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
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iii.
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• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.
• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.
• Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area.
In addition, the Agency must provide for periodic evaluation of any estimates used. To provide for the periodic evaluation of the estimate of PCT as required by FFDCA section 408(b)(2)(F), EPA may require registrants to submit data on PCT.
In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6-7 years. EPA uses an average PCT for chronic dietary risk analysis. The average PCT figure for each existing use is derived by combining available public and private market survey data for that use, averaging across all observations, and rounding to the nearest 5%, except for those situations in which the average PCT is less than one. In those cases, 1% is used as the average PCT and 2.5% is used as the maximum PCT. EPA uses a maximum PCT for acute dietary risk analysis. The maximum PCT figure is the highest observed maximum value reported within the recent 6 years of available public and private market survey data for the existing use and rounded up to the nearest multiple of 5%.
The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency. Other than the data available through national food consumption surveys, EPA does not have available reliable information on the regional consumption of food to which linuron may be applied in a particular area.
2.
Based on the Pesticide Water Calculator (PWC), a graphical user interface that runs the Pesticide Root Zone Model (PRZM, v 5, November 15, 2006), PRZM-GW, and the Variable Volume Water Body Model (VVWM, 3/6/2014), the estimated drinking water concentrations (EDWCs) of linuron for acute exposures are estimated to be 65 parts per billion (ppb) for surface water and 40 ppb for ground water, and those for chronic exposures for non-cancer assessments are estimated to be 47 ppb for surface water and 37 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 65 ppb was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 47 ppb was used to assess the contribution to drinking water.
3.
Linuron is not registered for any specific use patterns that would result in residential exposure.
4.
1.
EPA has determined that reliable data show the safety of infants and children would be adequately protected if the FQPA SF were reduced to 1X. That decision is based on the following findings:
i. The toxicity database for linuron is considered adequate. The requirement for the comparative thyroid assay that was required as part of the EDSP to evaluate the potential for increased sensitivity in the young was waived. As a result, the FQPA SF of 10X for linuron has been removed for all exposure routes and durations.
ii. Although findings were observed in the acute neurotoxicity study, the concern for neurotoxicity is low since: (1) a clear NOAEL was established and is 5-fold lower than the dose causing potential neurotoxic effects; (2) the selected endpoints for risk assessment are protective of the observed neurotoxicity; (3) no corroborative neuropathology was associated at the LOAEL or higher dose in the acute neurotoxicity study; and (4) there were no other neurotoxic-like effects observed in the linuron database indicating the nervous system is not the most sensitive for linuron.
iii. There is evidence of quantitative susceptibility in the two-generation reproduction toxicity study in rats and developmental effects, but not susceptibility, in the rat and rabbit developmental studies; however, concern is low since there are clear NOAELs established for the developmental and offspring effects and the selected endpoints are protective of these effects.
iv. There are no residual uncertainties identified in the exposure databases. The acute dietary (food) exposure assessment utilized conservative upper-bound inputs including assuming 100% of the registered crops treated, and tolerance-level residues for all commodities. The chronic dietary exposure assessment was partially refined, used tolerance-level residues for all commodities and average PCT estimates when available. The drinking water assessment utilized water concentration values generated by models and associated modeling parameters which are designed to produce conservative, health protective, high-end estimates of water concentrations which are not likely to be exceeded. The dietary (food and drinking water) exposure assessment does not underestimate the potential exposure for infants, children, or women of childbearing age. No residential uses are proposed or registered for linuron at this time, so no residential exposure assessment was conducted.
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
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Adequate enforcement methods are available for the determination of linuron residues of concern in/on plant and livestock tissues. The current enforcement methods determine linuron and all metabolites hydrolyzable to 3,4-dichloroaniline (3,4-DCA). The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level. The Codex has not established a MRL for linuron.
EPA received one comment to the notice of filing from March 22, 2022, which opposed the use of linuron on any food. The commenter expressed a general opposition to the use of “toxic chemicals” on food. The Agency understands the commenter's concerns and recognizes that some individuals believe that certain pesticide chemicals should not be permitted in our food. However, the existing legal framework provided by section 408 of the FFDCA states that tolerances may be set when the pesticide meets the safety standard imposed by that statute. The Agency is required by section 408 of the FFDCA to estimate the risk of the potential exposure to these residues. EPA has concluded, based on data submitted in support of the petition and other reliable data, that there is a reasonable certainty that no harm will result from aggregate human exposure to linuron residues from use on alfalfa. Testing requirements for pesticide tolerances have been specified by rulemaking after allowing for notice and comment by the public and peer review by appropriate scientific bodies. See 40 CFR part 158 for further information.
Therefore, tolerances are established for residues of linuron in or on alfalfa, forage and alfalfa, hay at 1 and 3 ppm.
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, for the reasons stated in the preamble, EPA is amending 40 CFR chapter I as follows:
21 U.S.C. 321(q), 346a and 371.
The additions read as follows:
(a) * * *
Office of Acquisition Policy, General Services Administration (GSA).
Final rule; correction.
On January 12, 2024, GSA published a final rule amending the General Services Administration Acquisition Regulation (GSAR) to clarify when GSAR clauses apply to Federal Supply Schedule contracts. Some text inadvertently appeared in a section revision. This correction removes that text.
This correction is effective February 12, 2024.
Ms. Adina Torberntsson, Procurement Analyst, at 720-475-0568 or
GSA is making a correction to a paragraph in the revision of 48 CFR 538.238-73 published in a final rule on January 12, 2024. The words “the Handicapped.” erroneously appeared in paragraph (b)(1) of the section.
In FR Doc. 2024-00519 appearing on page 2173 in the issue of January 12, 2024, make the following correction:
U.S. Agency for International Development.
Direct final rule.
The U.S. Agency for International Development (USAID) is issuing this direct final rule revising the Agency for International Development Acquisition Regulation (AIDAR) to maintain consistency with Federal and agency regulations, remove obsolete material and internal agency procedures, and make editorial amendments to clarify the regulation.
This rule is effective May 22, 2024, without further action, unless significant adverse comments are received by February 22, 2024. If significant adverse comment(s) are received, USAID will publish a timely withdrawal of those portion(s) of the rule in the
You may send comments, identified by your name, company name (if any), and the Regulatory Information Number (RIN) 0412-AA88 for this rulemaking via the following method:
•
Lyudmila Bond, 202-916-2622,
USAID is publishing this revision as a direct final rule as the changes are conforming and administrative amendments and the agency does not anticipate any significant adverse comments. This rule will be effective on the date specified in the
USAID will only address comments that explain why the rule would be inappropriate, ineffective, or unacceptable without a change. USAID may not consider comments that are insubstantial or outside the scope of the rule.
If significant adverse comments are received on the direct final rule, USAID will publish a timely partial withdrawal in the
Additionally, USAID is publishing a separate document in the “Proposed Rules” section of this
This direct final rule is part of the AIDAR rewrite initiative, in which all parts of the regulation were reviewed and updated to: make editorial amendments to clarify the regulation, include previously implemented policy, and delete outdated information and agency internal guidance from the regulation. This rule incorporates updates to the AIDAR parts 701, 702, 704, 705, 706, 715, 719, 725, 731, 742, 750, and 752.
The following changes are implemented by this direct final rule:
• AIDAR 701.303, 701.470, 701.601, 701.602-1, 702.170, 704.2105 [new section], 704.5 [new subpart], 705.102, 705.202, 706.302-70, 715.602, 715.604, 719.271-6, 725.170, 725.403, 731.771, 731.773, 742.770, 750.000, 750.7101, 750.7102, 750.7103, 750.7104, 750.7105, 750.7106-1, 750.7106-2, 750.7106-3, 750.7107, 750.7108, 750.7109-1, 750.7109-3, 750.7110, 752.202-1, 752.222-70, 752.222-71, 752.225-9 [redesignated as 752.225-11], 752.225-70, 752.227-14, 752.231-71, 752.7018, 752.7019, 752.7021, 752.7022, 752.7023, 752.7024, 752.7028, and 752.7032, are revised for clarity, to maintain consistency with Federal and agency regulations, to update references to current agency procedures, to remove outdated information and internal agency guidance, and, where applicable, to correct errors and omissions. Additional background and specific highlights of changes include:
• AIDAR sections 701.601(c)(2), 719.271-6(a)(4), 752.202-1(c) (Alternate 71), 752.7018, 752.7019, 752.7021, 752.7022, 752.7023, and 752.7024 are being removed (and in most instances reserved) as USAID no longer has a separate Participant Training program; therefore, the sections, paragraphs, and clauses referring to it are obsolete.
• Section 889(a)(1)(A) of the John S. McCain National Defense Authorization Act (NDAA) for fiscal year (FY) 2019 prohibits agencies after August 13, 2019, from entering into a contract (or extending or renewing a contract) with an entity that procures or obtains 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. Section 889(a)(1)(B) of the John S. McCain NDAA for FY 2019 prohibits executive agencies from entering into a contract (or extending or renewing a
AIDAR section 704.2105 is added to allow contracting officers to omit provisions and clauses prescribed in FAR subpart 4.21 from personal services contracts awarded under AIDAR appendices D and J.
• The new AIDAR subpart 704.5, Electronic Commerce in Contracting, encourages the use of electronic commerce through USAID's eSign Portal located at
• AIDAR sections 705.102, 705.202, and 706.302-70 are updated to reflect the agency's current policies on exceptions to publicizing and competition requirements. In accordance with FAR 5.102(a)(5)(iii), sections 705.102 and 705.202 exempt certain solicitations and awards of personal services contracts and contracts at $250,000 or less from the publicizing requirements in FAR part 5. Section 706.302-70, Impairment of foreign aid programs, was revised to clarify, among other administrative updates, that authorities in 706.302-7(b)(1) through (4) can be used on a class basis. An Assistant Administrator's determination and findings may cover one or more contract actions or programs within delegated program authority. A determination and findings made by the Administrator may cover all USAID programs, pertain to matters which concern more than one Assistant Administrator, or any Agency contract actions at the Administrator's discretion.
• On January 29, 2020, the United States adopted the Agreement between the United States of America, the United Mexican States (Mexico), and Canada (the United States-Mexico-Canada Agreement), as approved by Congress in the United States-Mexico-Canada Agreement Implementation Act (Government Procurement Agreement applicable only to United States and Mexico) (Pub. L. 116-113) (19 U.S.C. chapter 29 (sections 4501-4732), USMCA). The USMCA supersedes the North American Free Trade Agreement (NAFTA); the reference to NAFTA in 725.403 is replaced with USMCA.
• AIDAR subpart 731.7 on contracts with nonprofit organizations is revised to conform to the policies in 2 CFR part 200, Office of Management and Budget's (OMB) Regulation, and 2 CFR part 700, USAID's supplement to 2 CFR part 200. On December 26, 2013 (at 78 FR 78590), OMB published new guidance at 2 CFR part 200 entitled “Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (OMB Uniform Guidance)”. The OMB guidance, which supersedes OMB Circulars A-21, A-87, A-89, A-102, A-110, A-122, and A-133, and the guidance in Circular A-50 on Single Audit Act follow-ups, was adopted by Federal agencies, including USAID, and became effective on December 26, 2014.
• AIDAR sections 731.771, 750.7101, 750.7103, and 750.7110 are being revised or removed (and reserved) as a result of agency deregulatory efforts. Notably, section 731.771 is no longer necessary as Government-wide policies on bid and proposal costs for awards with nonprofit organizations have been established in 2 CFR part 200.
• AIDAR clause at 752.222-71, Nondiscrimination, is being revised to mirror USAID's policy statement on Equal Employment Opportunity, which can be found on the agency's public website at
This direct final rule was drafted in accordance with Executive Order (E.O.) 12866, as amended by E.O. 14094, and E.O. 13563. OMB has determined that this rule is not a “significant regulatory action,” as defined in section 3(f) of E.O. 12866, as amended, and is therefore not subject to review by OMB.
This direct final rule is not a major rule under the Congressional Review Act (5 U.S.C. 801
This rule will not have a substantial direct effect on the states, on the relationships between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government. Therefore, it is determined that this direct final rule does not contain policies that have federalism implications.
The rule will not have an impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
This rule does not establish a new collection of information that requires the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
For the reasons discussed in the preamble, USAID amends 48 CFR chapter 7 as follows:
Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.
(a)
(c)
(a)
(2) In preparing and submitting deviations, USAID operating units must follow the applicable USAID policy, including mandatory consultations with the Bureau for Management, Office of Acquisition and Assistance, Policy Division (M/OAA/P) and the Office of the General Counsel. Approved deviations must be retained in the contract file.
(b)
(1) Class deviations from the AIDAR will be processed in accordance with the applicable USAID policy. Individual heads of contracting activities have authority to approve class deviations affecting contracts only within the contracting activity under their management authority. Only the M/OAA Director has authority to approve class deviations that affect more than one contracting activity.
(2) Class deviations from the FAR will be considered jointly by USAID and the Chairperson of the Civilian Agency Acquisition Council (C/CAAC) pursuant to FAR 1.404. M/OAA/P is responsible for consultations with the C/CAAC. If the head of the contracting activity determines that urgency precludes such consultations, the deviation must include the reason, certified by the head of the contracting activity, for not coordinating with the C/CAAC and must be promptly shared with M/OAA/P. M/OAA/P is responsible for notifying the C/CAAC of the class deviation.
(3) Class deviations from the FAR and the AIDAR will expire two (2) years from the date of approval, unless a shorter period is specified in a deviation or approval is rescinded. Class deviations from the FAR or the AIDAR that are based on statutory requirements or those that are in an active agency or Federal rulemaking process may extend beyond the 2-year period until the rulemaking is completed. Expiration of the deviation or the completion of related rulemaking ends its availability for use in future awards and modifications. Expiration dates must be shown on all class deviations.
(4) Class deviations cannot be extended, except as provided in paragraph (b)(3) of this section. A new deviation to replace an expiring deviation must be prepared and approved in accordance with applicable Agency policy.
(5) Approved class deviations must be retained by the issuing office and also in each contract file where the deviation is used.
(c)
(d)
(a)
(2) The M/OAA Director has specific authority to:
(i) Select and appoint contracting officers and terminate their appointments in accordance with FAR 1.603; and
(ii) Exercise or delegate the authorities identified in FAR subpart 1.4 with regard to deviations from FAR subpart 1.4.
(b)
(c)
(d)
(1)
(ii) Authority to execute simplified acquisitions up to $50,000 for immediate disaster relief purposes, or delegate such authority to qualified individuals in BHA. Such individuals must be selected and appointed in accordance with the requirements in FAR 1.603 and AIDAR 701.603.
(2)
(ii) Authority to execute simplified acquisitions within the threshold defined in FAR 2.101 (or local currency equivalent).
(iii) May delegate the authority for simplified acquisitions up to $50,000 to qualified individuals within that contracting activity. Such individuals must be selected and appointed in accordance with the requirements in FAR 1.603 and AIDAR 701.603.
With the exception of termination settlements subject to part 749, contracting officers have the authority to negotiate and enter into settlements with contractors for costs questioned under audit reports, or to issue a contracting officer's final decision pursuant to applicable dispute resolution procedures (in the event that questioned costs are not settled by negotiated agreement) in accordance with USAID's internal policy. The negotiated settlement or final decision will be final, subject only to a contractor's appeal under the provisions of the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613), or other procedures, as applicable. Internal policy and procedures for resolving audit recommendations are found in ADS series 500 chapters for audits.
Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.
The addition and revisions read as follows:
(1)
(2)
(1) The heads of USAID contracting activities are listed in this paragraph (1). The limits of their contracting authority are set forth in 701.601.
(i)
(B) Assistant to the Administrator, Bureau for Humanitarian Assistance (BHA).
(ii)
(2) Individuals serving in the positions listed in paragraph (1) of this definition in a designated “Acting” capacity may exercise the authority delegated to that position.
Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.
USAID encourages the use of electronic commerce through USAID's eSign Portal located at DocuSign. The agency head has determined that the eSign Portal is capable of ensuring authentication and confidentiality commensurate with the risk and magnitude of the harm from loss, misuse, or unauthorized access to or modification of the information. USAID uses Login.gov for secure sign in. USAID will accept electronic signatures in connection with contracts, modifications and any other documentation where digital signatures are authorized under the FAR.
(a)-(c) [Reserved]
(d)
Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381), as amended; E.O.
In accordance with FAR 5.102(a)(5)(iii), the Senior Procurement Executive has determined that access through the Governmentwide Point of Entry is not in the Government's interest for solicitations for any contract of $250,000 or less by an overseas contracting activity issued under the authorities in 706.302-70(b)(2) or in accordance with the requirements in FAR part 13.
(a) [Reserved]
(b)
(1) Contract actions described in 706.302-70(b)(1) through (3); or
(2) A contract of $250,000 or less by an overseas contracting activity issued in accordance with the requirements in FAR part 13.
Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381), as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673, 3 CFR, 1979 Comp., p. 435; 40 U.S.C. 474.
(a)
(2) Full and open competition need not be obtained when it would impair or otherwise have an adverse effect on programs conducted for the purposes of foreign aid, relief, and rehabilitation.
(b)
(1) Personal services performed abroad by an individual under the authorities of section 636(a)(3) of the Foreign Assistance Act of 1961, as amended;
(2) Supplies or services with a total value of $250,000 or less by an overseas contracting activity;
(3)(i) Supplies or services when the cognizant Assistant Administrator makes a formal written Determination and Findings (D&F)(see FAR subpart 1.7), that compliance with full and open competition procedures to procure the goods or services through one or more contract actions would impair foreign assistance objectives and would be inconsistent with the fulfillment of one or more foreign assistance programs for which the Assistant Administrator is responsible; or
(ii) Supplies or services for countries, regions, or programs for which the Administrator of USAID makes a D&F (see FAR subpart 1.7) that compliance with full and open competition procedures would impair foreign assistance objectives, and would be inconsistent with the fulfillment of foreign assistance programs;
(4) Supplies or services awarded under 715.370-1 or 715.370-2; and
(5) A specific contract for the continued provision of highly-specialized services when an award to another contractor would result in substantial additional costs to the Government or cause unacceptable delays.
(c)
(2) Proposals must be requested from as many potential offerors as is practicable under the circumstances.
(3) When using the authorities in paragraphs (b)(4) and (5) of this section the contracting officer must publicize the advance notice of the proposed contract action as required in FAR 5.201. However, when the authorities at paragraphs (b)(1) through (3) of this section are used, advance notice of proposed contract action is not required in accordance with AIDAR 705.202.
(4) The authority in paragraph (b)(3) of this section shall be used only when no other authority provided in FAR 6.302 or AIDAR 706.302 is suitable. The specific foreign assistance objective that would be impaired must be identified and explained in a written D&F. Prior consultation with the Agency Competition Advocate (see 706.501) is required before executing the written D&F, and this consultation must be reflected in the D&F. In addition, the contracting activity must prepare a J&A as required in paragraph (c)(1) of this section.
(5) Use of the authority in paragraph (b)(5) of this section for proposed follow-on contracts or modifications to extend contracts for the continued provision of highly-specialized services in excess of one year or over $250,000 is subject to the approval of the Agency Competition Advocate. For all other extensions and follow-on contracts relying on the authority in paragraph (b)(5), the contracting officer's certification required in FAR 6.303-2(b)(12) will serve as approval.
Sec. 621, Pub. L. 87-195, 75 Stat. 445 (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.
(a) USAID encourages the submission of unsolicited proposals that contribute new and innovative ideas that are consistent with and contribute to the accomplishment of the Agency's objectives. Potential offerors should consider the guidance in FAR 15.6 and in AIDAR 715.6 prior to preparing and submitting a formal unsolicited proposal.
(b) Unsolicited proposals will only be considered when they support USAID strategy. USAID Mission programs must be responsive to the needs of the cooperating country; projects are often designed in collaboration with the cooperating country. These factors can limit both the need for, and USAID's ability to use, unsolicited proposals.
(c) The
(a) USAID's Bureau for Legislative and Public Affairs, Office of Program and Management Operations, manages the receipt and evaluation of unsolicited proposals. Unsolicited proposals may be submitted via:
(b) Before preparing a detailed unsolicited proposal or submitting proprietary information, a prospective offeror may make preliminary contact with USAID bureaus, field missions, or other operating units to obtain information sources on USAID's strategies and objectives and other information listed in FAR 15.604 and AIDAR 715.602.
42 U.S.C. 7254, 40 U.S.C. 486(c), 42 U.S.C. 2201.
Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.
(a) In addition to the exception stated in FAR 25.103 for purchases of foreign end products for use outside the United States, Executive Order 11223, dated May 12, 1965, provides an exception for assistance functions performed under the authority of the Foreign Assistance Act.
(b) USAID regulation at 22 CFR part 228 contains generally more prescriptive geographic procurement requirements under the Foreign Assistance Act than those under the Buy American Act. As a general rule, the requirements in 22 CFR part 228 will be used in USAID program-funded awards. For operating expense-funded procurements for supplies for use in the United States, USAID applies the Buy American Act requirements.
FAR subpart 25.4 establishes procedures for purchases of supplies under the Trade Agreements Act of 1979 (including the World Trade Organization's Government Procurement Agreement) and the USMCA (United States-Mexico-Canada Agreement, as approved by Congress in the United States-Mexico-Canada Agreement Implementation Act (Government Procurement Agreement applicable only to United States and Mexico) (Pub. L. 116-113) (19 U.S.C. chapter 29 (sections 4501-4732)). Consistent with these agreements, USAID operating expense-funded administrative procurements for supplies for use in the United States are subject to the procedures in FAR part 25, unless otherwise excepted in FAR subpart 25.4. USAID program-funded contracts for the purpose of providing foreign assistance are not subject to the procedures set forth in FAR subpart 25.4
Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; and 3 CFR 1979 Comp., p. 435.
(a) The Bureau for Management, Office of Acquisition and Assistance, Cost Audit Support Division, Overhead and Special Cost and Contract Close-Out Branch (M/OAA/CAS/OCC) provides assistance to the M/OAA Director regarding the application of 2 CFR part 200, subpart E. M/OAA/CAS/OCC is responsible for liaising with other cognizant agencies; authorizing exemptions to subpart E coverage for a nonprofit organization pursuant to 2 CFR 200.401(c); and providing advice and assistance in applying the cost principles.
(b) Prior approval, as used in 2 CFR part 200, means securing the awarding agency's advance written permission to incur costs. Where an item of cost requiring prior approval is included in the award budget, approval of the budget constitutes prior approval of that cost, unless otherwise specified. Accordingly, contract budgets must include one of the following statements:
(1) “Inclusion of any cost in the line item budget of this award does not constitute prior approval of cost items pursuant to 2 CFR part 200”; or
(2) “In accordance with 2 CFR part 200, approval is granted to incur costs for (name specific item or items requiring prior written approval) which are included in the budget of this award.”
The cost principle at FAR 31.205-18 applies to independent research and development costs.
Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.
When USAID is the cognizant Federal agency pursuant to FAR 42.003, USAID may enter into a Negotiated Indirect
Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.
USAID is not among the agencies named in the SAFETY Act or authorized by the President under Public Law 85-804 to take actions under the SAFETY Act.
This subpart specifies the standards and the procedures relating to requests for extraordinary contractual actions under Executive Order 11223.
Under section 633 of the Foreign Assistance Act of 1961, 75 Stat. 454 (22 U.S.C. 2933), as amended; Executive Order 11223, dated May 12, 1965, as amended; and Executive Order 12163, dated September 29, 1979, as amended, the Administrator of the U.S. Agency for International Development has authority to provide extraordinary contractual relief.
Extra-contractual claims arising from foreign assistance contracts will be processed similarly to claims for extraordinary relief under FAR part 50, and in consideration of the circumstances and authorities granted by the Foreign Assistance Act.
The types of actions that may be taken pursuant to the direction of the approving authority under the Executive Order 11223 are: contractual adjustments such as amendments without consideration, correction of mistakes, and formalization of informal commitments.
All authority to approve actions under this subpart is delegated to the M/OAA Director. The cognizant contracting officer will take appropriate contractual action pursuant to the decision of the M/OAA Director.
The mere fact that losses occur under a contract is not, by itself, a sufficient basis for the exercise of the authority conferred by Executive Order 11223. Whether, in a particular case, an action will protect the foreign policy interests of the United States is fact specific. Examples of the types of cases where action may be proper are set forth in 750.7106-2 through 750.7106-4. * * *
(a) Where an actual or threatened loss under a foreign assistance contract, however caused, will impair the productive ability of a contractor whose continued performance of any foreign assistance contract or whose continued operation as a source of supply is found to be essential to protect the foreign policy interests of the United States, the contract may be adjusted to the extent necessary to avoid such impairment to the contractor's productive ability.
(a) A contract may be amended or modified to correct or mitigate the effect of a mistake, including in the following situations:
(1) A mistake or ambiguity in the contract that results from the failure to clearly express the agreement as understood by both parties;
(2) A mistake on the part of the contractor which is so obvious that it was or should have been apparent to the contracting officer; and
(3) A mutual mistake as to a material fact.
(b) Amending contracts to correct mistakes with the least possible delay normally will protect the foreign policy interests of the United States by expediting the program and by giving contractors proper assurance that such mistakes will be corrected expeditiously and fairly. An action that can be accomplished by administrative modification or resolved using the procedures in FAR subpart 33.2 should not be resolved using the authority and procedures of this subpart.
(a) Executive Order 11223 does not provide authority for:
(1) The award of a cost-plus-a-percentage-of-cost contract;
(2) The payment of profit or fees in excess of applicable limitations; or
(3) The waiver of any requirement to post a bid, payment, performance, or other bond required by law.
(b)(1) Executive Order 11223 does not authorize the issuance of a modification, unless:
(i) With respect to cases falling within Section 4 of Executive Order 11223, the approving authority determines that the action is necessary to protect the foreign policy interests of the United States; and
(ii) No other legal authority authorizes issuance of such modification.
(2) A modification under paragraph (b)(1) of this section must be within the limits of the amounts appropriated and the statutory contract authorization as referenced in FAR 50.102-3.
(c) No contract shall be modified unless the contractor submits a request prior to all obligations (including final payment) under the contract having been discharged.
(d) An informal commitment must not be formalized unless:
(1) The contractor submits a written request for payment within six months after furnishing, or arranging to furnish, supplies or services in reliance upon the commitment;
(2) USAID has received the services satisfactorily performed, or has accepted property furnished in reliance on the commitment;
(3) The USAID employee alleged to have made the informal commitment has affirmatively acknowledged
(4) USAID has taken appropriate action to prevent recurrence.
Every contract modified pursuant to this subpart shall contain:
(a) A citation of the Act and Executive Order 11223;
(b) A brief statement of the circumstances justifying the action; and
(c) With respect to cases falling within section 4 of Executive Order 11223, a statement that the action is necessary to protect the foreign policy interests of the United States.
A contractor seeking an adjustment under the standards set forth in 750.7106 may file a request with the cognizant contracting officer.
The contracting officer or the approving authority may, where necessary, require the contractor to furnish facts and evidence supporting the request, as described in FAR 50.103-4.
Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C. 2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR, 1979 Comp., p. 435.
As prescribed in 722.810(b), insert the following clause in section I of all solicitations and resulting contracts.
FAR part 22 and the clauses prescribed in that part prohibit contractors performing in or recruiting from the U.S. from engaging in certain discriminatory practices. USAID is committed to achieving and maintaining a diverse and representative workforce and a workplace free of discrimination. Based on law, Executive Order, and Agency policy, USAID prohibits discrimination in its own workplace on the basis of race, color, religion, sex (including pregnancy, sexual orientation, gender identity, or transgender status), national origin, age (40 or older), physical or mental disability, genetic information, religion, marital or parental status, veteran status, membership in an employee organization, political affiliation, or involvement in protected equal employment opportunity (EEO) activity. USAID does not tolerate any type of discrimination (in any form, including harassment) of any employee or applicant for employment on any of the above-described bases.
Contractors are required to comply with the nondiscrimination requirements of the FAR. In addition, the Agency strongly encourages all its contractors (at all tiers) to develop and enforce nondiscrimination policies consistent with USAID's approach to workplace nondiscrimination as described in this clause, subject to applicable law.
The clauses prescribed by FAR 25.1101 are not generally included in USAID contracts when more stringent source requirements are stated in the contract or when inclusion is not appropriate under FAR 25.403, or AIDAR 725.403. (See Executive Order 11223, dated May 12, 1965.) The clause setting forth USAID's source restrictions is provided in 752.225-70.
The differentials and allowances authorized in this clause apply only to U.S. employees. Any reimbursement of differentials or allowances to TCN or CCN employees under this contract is limited to separate and specific authorization(s) for identified differentials or allowances which are granted by the cognizant Assistant Administrator or Mission Director pursuant to 722.170, or by the Mission Director in conjunction with an authorized evacuation as provided in paragraph (i). A copy of such authorization shall be retained and made available as part of the contractor's records which are required to be preserved and made available by the “Examination of Records by the Comptroller General” and “Audit” clauses of this contract.
(a)
(h)
(i)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using trawl gear in the Central Regulatory Area of the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the A season allowance of the 2024 total allowable catch of Pacific cod by catcher vessels using trawl gear in the Central Regulatory Area of the GOA.
Effective 1200 hours, Alaska local time (A.l.t.), January 20, 2024, through 1200 hours, A.l.t., June 10, 2024.
Abby Jahn, 907-586-7416.
NMFS manages the groundfish fishery in the GOA exclusive economic zone according to the Fishery Management Plan for Groundfish of the Gulf of Alaska (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The A season allowance of the 2024 Pacific cod total allowable catch (TAC) apportioned to catcher vessels using trawl gear in the Central Regulatory Area of the GOA is 3,867 metric tons (mt) as established by the final 2023 and 2024 harvest specifications for groundfish in the GOA (88 FR 13238, March 2, 2023) and inseason adjustment (88 FR 88840, December 26, 2023).
In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the A season allowance of the 2024 Pacific cod TAC apportioned to catcher vessels using trawl gear in the Central Regulatory Area of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 0 mt and is setting aside the remaining 3,767 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by catcher vessels using trawl gear in the Central Regulatory Area of the GOA.
While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by catcher vessels using trawl gear in the Central Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 12, 2024.
The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; closure.
NMFS is prohibiting directed fishing for Pacific cod by American Fisheries Act (AFA) trawl catcher/processors in the Bering Sea and Aleutian Islands management area (BSAI). This action is necessary to prevent exceeding the annual 2024 Pacific cod total allowable catch (TAC) allocated to AFA trawl catcher/processors in the BSAI.
Effective 1200 hours, Alaska local time (A.l.t.), January 20, 2024, through 1200 hours, A.l.t., November 1, 2024.
Adam Zaleski, 907-586-7228.
NMFS manages the groundfish fishery in the BSAI exclusive economic zone according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.
The annual apportionment of the 2024 Pacific cod TAC allocated to AFA trawl catcher/processors in the BSAI is 3,201 metric tons (mt) as established by the final 2023 and 2024 harvest specifications for groundfish in the BSAI (88 FR 14926, March 10, 2023) and inseason adjustment (88 FR 88836, December 26, 2023).
In accordance with § 679.20(d)(1)(i) and § 679.20(d)(1)(ii)(B), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the annual 2024 Pacific cod TAC allocated to AFA trawl catcher/processors in the BSAI is necessary to account for the incidental catch in other anticipated fisheries. Therefore, the Regional Administrator is establishing a directed fishing allowance of 0 mt and is setting aside the remaining 3,201 mt as incidental catch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Pacific cod by AFA trawl catcher/processors in the BSAI.
While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.
NMFS issues this action pursuant to section 305(d) of the Magnuson-Stevens Act. This action is required by 50 CFR part 679, which was issued pursuant to section 304(b), and is exempt from review under Executive Order 12866.
Pursuant to 5 U.S.C. 553(b)(B), there is good cause to waive prior notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest, as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the closure of Pacific cod by AFA trawl catcher/processors in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of January 10, 2024.
The Assistant Administrator for Fisheries, NOAA also finds good cause to waive the 30-day delay in the effective date of this action under 5 U.S.C. 553(d)(3). This finding is based upon the reasons provided above for waiver of prior notice and opportunity for public comment.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to supersede Airworthiness Directive (AD) 2010-18-06, which applies to all GA8 Airvan (Pty) Ltd Model GA8 and GA8-TC320 airplanes. AD 2010-18-06 requires inspections and a minor design change to the forward slide of the cargo door with corrective action as necessary. Since the FAA issued AD 2010-18-06, the Civil Aviation Safety Authority (CASA), which is the aviation authority for Australia, superseded the previous CASA Australia AD to incorporate more detailed inspections and additional modifications as specified in updated service information published by the manufacturer. This proposed AD was prompted by reports of in-flight cargo door separation. This proposed AD would require inspections and rework (modifications) of the cargo door with corrective action as necessary. The FAA is proposing this AD to address the unsafe condition on these products.
The FAA must receive comments on this NPRM by March 8, 2024.
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 GA8 Airvan (Pty) Ltd, PO Box 881, Morwell, Victoria 3840, Australia; phone: +61 03 5172 1200; website:
• You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 901 Locust, Kansas City, MO 64106. For information on the availability of this material at the FAA, call (817) 222-5110.
Doug Rudolph, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: (816) 329-4059; email:
The FAA invites you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under
Except for Confidential Business Information (CBI) as described in the following paragraph, and other information as described in 14 CFR 11.35, the FAA will post all comments received, without change, to
CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (FOIA) (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to this NPRM contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to this NPRM, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission containing CBI as “PROPIN.” The FAA will treat such marked submissions as confidential under the FOIA, and they will not be placed in the public docket of this NPRM. Submissions containing CBI should be sent to Doug Rudolph, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590. Any commentary that the FAA receives which is not specifically designated as CBI will be placed in the public docket for this rulemaking.
The FAA issued AD 2010-18-06, Amendment 39-16419 (75 FR 52253, August 25, 2010) (AD 2010-18-06), for all GA8 Airvan (Pty) Ltd Model GA8 and GA8-TC320 airplanes. AD 2010-18-06 was prompted by MCAI originated by CASA, which is the aviation authority for Australia. CASA Australia issued CASA Australia AD AD/GA8/3 Amdt 2, dated August 11, 2010 (CASA Australia AD/GA8/3 Amdt 2) to correct an unsafe condition identified as excessive wear in the forward cargo door slide, which could result in an in-flight separation of the cargo door, with possible loss of control of the airplane. CASA Australia AD AD/GA8/3 Amdt 2 was issued to require the actions in service information updated by the manufacturer to remove any ambiguities in the previous revision and provide an improved inspection method and a minor design change to the forward slide of the cargo door (inclusion of a slide backing plate, castellated nut, and split pin).
AD 2010-18-06 requires doing all of Action 1 (measuring the groove width of
Since the FAA issued AD 2010-18-06, CASA Australia superseded CASA Australia AD AD/GA8/3 Amdt 2 and issued CASA Australia AD AD/GA8/3 Amdt 3, dated August 18, 2023 (CASA Australia AD AD/GA8/3 Amdt 3) (also referred to as the MCAI). The MCAI states that inspections revealed cases of excessive wear in the forward slide of the cargo door. Excessive wear in the forward slide of the cargo door may result in the cargo door separating from the airplane in flight with potentially catastrophic results. The MCAI requires accomplishing the actions specified in GippsAero Service Bulletin SB-GA8-2005-23, Issue 7, dated May 30, 2023 (GippsAero Service Bulletin SB-GA8-2005-23, Issue 7). This service bulletin includes procedures for revised inspections of the door mechanism, installing a stop on the forward slide of the cargo door and reworking the door slide to suit (accommodate) the track stop installation. Depending on the findings of the inspections, additional actions might be necessary including reworking the door mechanism pivot, upgrading the door operating rod, or fitting a door handle with an integral stop.
The FAA is proposing this AD to address excessive wear in the forward slide of the cargo door. The unsafe condition, if not addressed, could result in the cargo door separating from the airplane during flight, with potential loss of control of the airplane.
You may examine the MCAI in the AD docket at
The FAA reviewed GippsAero Service Bulletin SB-GA8-2005-23, Issue 8, dated October 11, 2023 (GippsAero SB-GA8-2005-23, Issue 8). This service information specifies procedures for installing a backing plate on the forward slide of the cargo door; inspecting the forward slide of the cargo door for excessive wear; inspecting the cargo door latching mechanism for contact between the operating rod and door handle pivot post, inspecting the threaded studs and rod ends at both ends of the operating rod for bending, and checking the cargo door handle engagement with the catch; reworking the cargo door handle pivot post; reworking the door operating rod; inspecting the door handle to determine if an integrated stop is installed and checking for excessive play; and inspecting the center rail of the cargo door to determine if an aft stop is installed, installing an aft stop, and reworking the center rail of the cargo door to accommodate the track stop.
This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in
These products have been approved by the aviation authority of another country and are approved for operation in the United States. Pursuant to the FAA's bilateral agreement with this State of Design Authority, it has notified the FAA of the unsafe condition described in the MCAI and service information referenced above. The FAA is issuing this NPRM after determining that the unsafe condition described previously is likely to exist or develop on other products of the same type design.
This proposed AD would retain none of the requirements of AD 2010-18-06. This proposed AD would require accomplishing the actions specified in the service information already described, except as discussed under “Differences Between this Proposed AD and the MCAI.”
The MCAI applicability is Gippsland Aeronautics Model GA8 Series airplanes, all serial numbers. The applicability in this proposed AD would be GA8 Airvan (Pty) Ltd Model GA8 and GA8-TC320 airplanes because the FAA type certificate specifies GA8 Airvan (Pty) Ltd instead of Gippsland Aeronautics and specifies Model GA8 and GA8-TC320 airplanes instead of Model GA8 Series airplanes.
The MCAI requires doing the actions in Gippsland Aeronautics mandatory service bulletin SB-GA8-2005-23 Issue 7, dated May 30, 2023. This proposed AD would require doing the actions in GippsAero SB-GA8-2005-23, Issue 8. After the MCAI was published, the manufacturer issued GippsAero SB-GA8-2005-23, Issue 8, which was revised to provide clarification regarding the actions and compliance schedule. The title page of GippsAero SB-GA8-2005-23, Issue 8, specifies GippsAero instead of Gippsland Aeronautics.
The FAA estimates that this AD, if adopted as proposed, would affect 61 airplanes of U.S. registry.
The FAA estimates the following costs to comply with this proposed AD. The corresponding letter and number in parenthesis refer to the specific paragraph in GippsAero SB-GA8-2005-23, Issue 8.
The FAA estimates the following costs to do any necessary actions that would be required based on the results of the proposed inspections. The agency has no way of determining the number of airplanes that might need these actions. The corresponding letter and number in parenthesis refer to the specific paragraph in GippsAero SB-GA8-2005-23, Issue 8.
The FAA has included all known costs in its cost estimate. According to the manufacturer, however, some of the costs of this proposed AD may be covered under warranty, thereby reducing the cost impact on affected operators.
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.
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 that the proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Would not affect intrastate aviation in Alaska, and
(3) Would 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 on this airworthiness directive (AD) by March 8, 2024.
This AD replaces AD 2010-18-06, Amendment 39-16419 (75 FR 52253, August 25, 2010).
This AD applies to GA 8 Airvan (Pty) Ltd Model GA8 and GA8-TC320 airplanes, all serial numbers, certificated in any category.
Joint Aircraft System Component (JASC) Code 5230, Cargo/Baggage Doors.
This AD was prompted by reports of in-flight cargo door separation. The FAA is issuing this AD to detect and correct excessive wear in the forward cargo door slide, which could result in an in-flight separation of the cargo door, with possible loss of control of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Do the applicable actions specified in Table 1 to paragraph (g) of this AD at the times in Table 1 to paragraph (g) of this AD, in accordance with the Accomplishment Instructions of GippsAero Service Bulletin SB-GA8-2005-23, Issue 8, dated October 11, 2023 (GippsAero SB-GA8-2005-23, Issue 8).
The Manager, International Validation Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the International Validation Branch, mail it to the address identified in paragraph (i)(2) of this AD or email to:
(1) Refer to Civil Aviation Safety Authority (CASA) Australia AD AD/GA8/3 amdt 3, dated August 18, 2023, for related information. This CASA Australia AD may be found in the AD docket at
(2) For more information about this AD, contact Doug Rudolph, Aviation Safety Engineer, FAA, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; phone: (816) 329-4059; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) GippsAero Service Bulletin SB-GA8-2005-23, Issue 8, dated October 11, 2023.
(ii) [Reserved]
(3) For service information identified in this AD, contact GA8 Airvan (Pty) Ltd, PO Box 881, Morwell, Victoria 3840, Australia; phone: +61 03 5172 1200; website:
(4) You may view this service information at the FAA, Airworthiness Products Section, Operational Safety Branch, 901 Locust, Kansas City, MO 64106. For information on the availability of this material at the FAA, call (817) 222-5110.
(5) You may view this material at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, visit
Internal Revenue Service, U.S. Department of the Treasury; Employee Benefits Security Administration, U.S. Department of Labor; Pension Benefit Guaranty Corporation.
Request for information.
The Department of the Treasury (Treasury Department), the Employee Benefits Security Administration (EBSA) of the U.S. Department of Labor (Labor Department), and the Pension Benefit Guaranty Corporation (PBGC) are publishing this Request for Information to develop a public record for purposes of the directive in the SECURE 2.0 Act of 2022 (SECURE 2.0). Specifically, this Request for Information addresses section 319 of SECURE 2.0, requiring that these agencies review the existing reporting and disclosure requirements for certain retirement plans under the Employee Retirement Income Security Act of 1974, as amended (ERISA) and the Internal Revenue Code (Code) that are applicable to each agency. Following this review, the agencies are to report to Congress, no later than December 29, 2025, concerning the effectiveness of the reporting and disclosure requirements. The report will include recommendations on consolidating, simplifying, standardizing, and improving such requirements with the dual goals of reducing compliance burdens and ensuring plan participants' and beneficiaries' timely receipt and better understanding of the information they need to monitor their plans, prepare for retirement, and get the benefits they have earned. The report will also consider how participants and beneficiaries are providing preferred contact information, the methods by which plan sponsors and plans are furnishing disclosures, and the rate at which participants and beneficiaries are receiving, accessing, understanding, and retaining disclosures. Consistent with the directive in section 319 of SECURE 2.0, this Request for Information focuses generally on the overall effectiveness of the reporting and disclosure frameworks in ERISA and the Code. Responses to this Request for Information will inform the agencies in preparation of the required report to Congress and in any future action taken by the agencies to enhance the effectiveness of existing requirements.
To be assured consideration, comments must be received at one of the following addresses no later than April 22, 2024.
Written comments, identified by RIN 1210-AC09, may be submitted to one of the addresses specified below. Any comment that is submitted will be shared with the Department of the Treasury, the Internal Revenue Service (IRS), and the Pension Benefit Guaranty Corporation. Please do not submit duplicates.
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Rebecca Davis, Office of Regulations and Interpretations, EBSA, Labor Department, (202) 693-8500. Jamie Dvoretzky, Office of Associate Chief Counsel (Employee Benefits, Exempt Organizations, and Employment Taxes (CC:EEE)), IRS, Treasury Department, at (202) 317-4102. David Simonetti, Legal Policy Division, Office of the General Counsel, PBGC, (202) 229-4362.
SECURE 2.0 includes provisions amending ERISA and the Code and requiring the Labor Department, the Treasury Department, and PBGC (each an Agency and, together, the Agencies) to undertake specified statutory, regulatory, and review requirements and, in some cases, to report to Congress based on their findings.
Section 319 of SECURE 2.0 includes a wide-ranging directive to the Agencies to review each Agency's existing reporting and disclosure requirements under the Code and ERISA for retirement plans specified in section 319 of SECURE 2.0.
ERISA and the Code require that plans furnish information to participants and beneficiaries, in some cases on a regular and recurring basis (
The term “reporting” is used in this RFI to refer to the furnishing of information, or “reports,” by plans to the Agencies, as required by ERISA or the Code, or regulations issued by the Agencies thereunder. The Agencies do not consider information that is submitted to the Agencies in connection with an audit, examination, investigation, or enforcement action to be “reports” for purposes of section 319. The Agencies also do not consider information that is furnished on a voluntary basis to an Agency to obtain favorable treatment, or information relating to financial transactions that is not retirement-plan-specific information to be “reports” for purposes of section 319. Examples of information not considered to be “reports” include:
Information that is submitted as a condition of an individual exemption under ERISA section 408(a).
Information that is submitted to the Agencies to receive financial assistance or benefits.
Information that is submitted to the Agencies in connection with requests for determination or opinion letters, advisory opinions, information letters, private letter rulings, closing agreements, voluntary compliance statements under the Employee Plans Compliance Resolution System, or relief pursuant to the Voluntary Fiduciary Correction Program or the Delinquent Filer Voluntary Compliance Program.
Information that is submitted to the Agencies and that is not specific to retirement plans, such as reporting that may be required of financial institutions holding foreign investments.
The Agencies recognize that a key component of retirement plans' reporting to the Agencies is the Form 5500 Annual Report. However, for purposes of this RFI, the Agencies are primarily focusing, and requesting comments, on reporting requirements other than the Form 5500 Annual Report. Apart from the context of SECURE 2.0 section 319, the Agencies have an annual process for soliciting feedback from the public on the Form 5500 Annual Report and reviewing and improving the effectiveness of that form in response to such feedback. The Agencies therefore pursue the overarching goal of the review required by section 319—improving the effectiveness of reporting on the Form 5500 Annual Report—every year. The Agencies urge commenters, when responding to this RFI, to focus on information and analyses that look beyond the requirements of the Form 5500 Annual Report.
In addition to information received and points of view expressed by public commenters in response to this RFI, the Agencies' review for purposes of the report to Congress may include feedback from the public provided as part of prior efforts of the Agencies and others to assess and improve the effectiveness of the reporting and disclosure requirements of the Code and ERISA. The Labor Department, for example, as recently as 2019, published a request for information (the DOL 2019 RFI), which solicited information, data, and ideas from the public on measures that the Labor Department could take to improve the effectiveness of plan disclosures, especially for the design and content of ERISA disclosures.
Parties external to the Agencies also have studied whether and how the reporting and disclosure frameworks of ERISA and the Code may be improved. The U.S. Government Accountability Office (GAO) has issued a number of reports in recent years on this topic, working with the Agencies to review reporting and disclosure requirements in different contexts.
The purpose of this RFI, as explained in Part I, is to obtain input from the public on the effectiveness of the reporting and disclosure requirements of ERISA and the Code that the Agencies can consider in preparing the required report to Congress. Responses to this RFI also may be used as part of the public record for any future action taken by the Agencies to enhance such effectiveness. The Agencies invite comments and relevant data from all interested stakeholders. Commenters need not answer every question, but are encouraged to identify, by number, each question addressed. The Agencies request comments no later than 90 days from the date of publication of this document in the
The effectiveness of required notices and disclosures may be measured from different perspectives, including that of the retirement plan participants and beneficiaries who are the intended recipients of these disclosures and that of the plans and plan sponsors that provide disclosures. Section 319 of SECURE 2.0 acknowledges the importance of both perspectives by directing the Agencies to analyze ways to consolidate, simplify, standardize, and improve such requirements, so as to achieve the dual goals of “simplify[ing] reporting for, and disclosure from, [retirement] plans” and ensuring that “participants and beneficiaries timely receive and better understand the information they need to monitor their plans, plan for retirement, and obtain the benefits they have earned.” The questions in Part 1 of this Section A are primarily intended to elicit information about disclosures from the perspective of participants and beneficiaries. The questions in Part 2 of this Section A are primarily aimed at better understanding the perspective of plans and plan sponsors on furnishing required disclosures. The Agencies understand that the distinction between these perspectives will not always be clear-cut, but nonetheless encourage commenters to consider the issues raised in this RFI from both perspectives when possible. Because plan officials and delegees (including plan fiduciaries, plan administrators, service and investment providers, and others) exercise important responsibilities in connection with plans' reporting and disclosure obligations, the Agencies' references in this RFI to “plans” include, unless otherwise specified, any such plan officials or delegees, to the extent they are responsible for, or are employed or hired to perform duties associated with, collecting and consolidating information and data and preparing and furnishing required notices and disclosures.
ERISA and the Code require plans to furnish information to participants and beneficiaries about the features of their plans (
Is the effectiveness of required disclosures from the Agencies affected by the number of notices and disclosures that are furnished to participants and beneficiaries each plan or calendar year (
Do the timing requirements for when certain disclosures must be furnished increase or decrease the likelihood that participants will pay attention to them? Should changes be made to when information is disclosed to participants and, if so, how? For example, to what extent would it be beneficial for plans to harmonize timing requirements to specific points in time corresponding to participants' major life milestones or events? Explain how such changes could be implemented and how they would enhance the likelihood that participants would pay attention to the disclosure or disclosures or otherwise improve the disclosure experience.
Is there duplicative, redundant, stale, or inconsistent information disclosed to participants under current rules promulgated under ERISA or the Code? If so, which information? Why do you consider that information duplicative, redundant, stale, or inconsistent? Do either ERISA or the Code, or regulations issued thereunder, currently require disclosure of any information that is unhelpful or outmoded, for example, due to the passage of time or changes in the regulatory, business, or technological environment? If so, what information and why is it unhelpful or outmoded? Is there information that should be disclosed instead of the unhelpful or outmoded information? If so, what information? How could it be improved? In analyzing the content of required disclosures, commenters are reminded to consider the objective stated in SECURE 2.0 section 319, that participants and beneficiaries be furnished the “information they need to monitor their plans, plan for retirement, and obtain the benefits they have earned.”
Section 319 of SECURE 2.0 requires that the Agencies' report to Congress include an analysis of “the rate at which participants and beneficiaries are receiving, accessing, understanding, and retaining disclosures.” As to individuals' understanding, the Agencies are interested in commenters' views on whether and how the length of specific disclosures, and the complexity of the information disclosed, may impact individuals' understanding of the disclosures. Besides length, what other factors affect comprehension of the information contained in notices and disclosures or, possibly, whether participants and beneficiaries even try to read and understand disclosures? Does review and comprehension of participants and beneficiaries vary among: (1) industries; (2) individuals of different ages, genders, education levels, socio-economic classes, place of living, impairments or disabilities, or other demographic characteristics; or (3) different types of disclosures? To what degree does the presentation, delivery, and design of disclosures (as opposed to their written content) impact the likelihood that participants and beneficiaries will read and understand the information disclosed? Are there design elements or tools that are particularly effective, for example, mixed media presentations, the use of social media, or plain language infographics? If so, should these presentation and design elements be required, or are there steps that could be taken to facilitate use of those methods? Are participants and beneficiaries regularly surveyed or otherwise assessed regarding their comprehension of information about their plans? How are those surveys or reviews conducted? What additional information should be considered in developing disclosures that are effective for different participants and beneficiaries? How can the Agencies effectively measure the extent to which participants and beneficiaries understand the information that is disclosed to them?
Information disclosed to participants and beneficiaries is often quite technical and complex. However, for disclosures to be useful, information needs to be conveyed in “plain language”—in a way that is understandable to a highly demographically diverse population of workers and their beneficiaries. Labor Department disclosures, for example, generally are required to be “written in a manner calculated to be understood by the average plan participant.”
As noted in Question 4, section 319 of SECURE 2.0 requires that the Agencies' report to Congress include an analysis of “the rate at which participants and beneficiaries are receiving,
As noted in Question 4, section 319 of SECURE 2.0 requires that the Agencies' report to Congress include an analysis of “the rate at which participants and beneficiaries are receiving, accessing, understanding, and retaining disclosures.” As to retention of disclosures, do plans collect data or conduct surveys on how often participants and beneficiaries download, print, save, or otherwise “retain” disclosures for future use? If so, how, and are any trends evident from such data? Does data exist on how often participants and beneficiaries request copies of disclosures, for example, do they often request paper disclosures to be re-mailed or electronic versions of disclosures to be re-sent via email, text, or mobile application, and, if so, are any trends evident from such data? To what extent, if any, does the ability of plan participants to access plan-related information online, such as through a continuous access secure website, impact conventional retention behavior? What methodologies exist, or are in development, for measuring retention of disclosures by participants and beneficiaries?
Do plans collect data on participant and beneficiary levels of engagement in response to participant notices and disclosures and, if so, what data is collected, and how is “engagement” defined and determined? What impediments, if any, prevent or dissuade plans from collecting such data? If such data is collected, do plans act in response to such data and, if so, are there illustrative examples? For example, are there circumstances when plans act based upon evidence of a participant's lack of engagement? To the extent sensitive or confidential information may be used in efforts to enhance engagement with participants and beneficiaries, do best practices exist for plans to ensure that such information is accessible but is not inappropriately used or disclosed to other parties? Do plans collect data on the extent to which disclosures impact participant and beneficiary behavior and decision-making? If so, how is this impact assessed? Is certain information or are certain disclosures more likely to elicit engagement or modify individuals' behavior? If so, which information or disclosures, and how? Do plans and plan service providers have ready access to information on when or how often plan participants and beneficiaries visit a plan's website or open plan-related emails or text messages? Are there any impediments to plans collecting and considering such information in assessing engagement and effectiveness? If so, what are those impediments?
Section 319 of SECURE 2.0 requires that the Agencies' report to Congress include an analysis of “how participants and beneficiaries are providing preferred contact information.” Given the fact-based nature of this analysis, the Agencies request data, statistics, or other information from plans about whether, when, how, and for what reasons (
Section 319 of SECURE 2.0 requires that the Agencies' report to Congress include an analysis of both “the methods by which plan sponsors and plans are furnishing disclosures” and “the rate at which participants and beneficiaries are
In some cases, the Agencies offer, or are required by statute to provide, model notices or model language that can be used by plans or plan administrators to satisfy the content requirements of required disclosures.
Please describe the extent to which plans receive questions from, or are made aware of concerns from, individuals who receive required notices and disclosures regarding those communications. What procedures are in place to respond to such questions and concerns? Are there common themes in the types of issues that result in inquiries from participants and beneficiaries? Is there any notable difference in the types of questions and concerns that are raised by telephone, by email, or otherwise?
What is the aggregate annual cost to defined contribution and defined benefit plans to make required disclosures? Are costs significantly higher for certain disclosures than others and, if so, which disclosures and why? To what extent are these disclosure costs paid from plan assets or from the general assets of a plan sponsor? Are there ways to lower disclosure costs without negatively impacting the comprehensiveness or effectiveness of the information that is required to be disclosed? Commenters are encouraged to provide any data relevant to these questions.
As with required disclosures, the effectiveness of required reporting to the Agencies can be measured from different perspectives. Section 319 of SECURE 2.0 explicitly refers to “simplify[ing] reporting for . . . plans,” evidencing concern for plans' perspectives. But the effectiveness of the Code's and ERISA's reporting requirements also may be evaluated from the perspectives of the Agencies receiving required reports, the participants and beneficiaries of reporting plans, and third parties who may be able to aggregate and use reported information to inform academic, industry, participant advocacy, or other work. Each of these perspectives is raised below.
What is your view on the number of reports that must be filed with the Agencies each plan or calendar year and how this number impacts a plan's ability to implement reporting procedures efficiently? Are the timing requirements of any reports in conflict or inefficient, either for one Agency or across the Agencies? Could the filing deadlines for any reports, either for ERISA or the Code or both, be modified to allow consolidation of more than one report without compromising the Agencies' timely receipt of information?
Please describe the extent to which any of the reports required by ERISA or the Code collect more, or less, information than you believe should be necessary for the Agencies to discharge their oversight and other responsibilities? If so, which reports, and how could they be modified to inform the Agencies more effectively? Do any challenges exist in obtaining information from sources subject to laws other than the Code and ERISA (
Are the instructions for reports clear and helpful? Are there particular reports for which the instructions could be simplified or could more accurately reflect the administration of retirement plans? Should the Agencies make instructions available in languages other than English? Should instructions be written subject to a readability standard, such as in a manner reasonably calculated to be understood by the target filers (for example large companies versus small employers)?
Do the filing methods for reports need updating or improvement? For reports that must be filed electronically, are there circumstances when plans would benefit from waiver procedures permitting paper filings and, if so, what plans, what reports, and what circumstances? Alternatively, are there reports that must be filed on paper that would be more effectively filed electronically, and, if so, as a mandate or as an option?
Are the Agencies' customer service personnel and capabilities sufficient or in need of improvement for the questions about the content of reports, technical support for completing and filing reports, or otherwise? Should the Agencies monitor, track, and disclose user experience for any reports? If so, how should the Agencies compile this data and use it to inform improvements
What is the aggregate annual cost to defined contribution and defined benefit plans to submit reports required by ERISA and the Code? Are costs significantly higher for certain reports than others and, if so, which reports, and why? To what extent are such reporting costs paid from plan assets versus from the general assets of the plan sponsor? Commenters are encouraged to provide any data relevant to these questions.
Is there information reported to the Agencies, but not affirmatively required to be furnished by plans to participants and beneficiaries, that might be beneficial to participants and beneficiaries? If so, what information and to what benefit? Could such information be furnished in a cost-effective manner or made available to participants and beneficiaries? If so, please describe these methods and how they could be cost effective. Is there evidence that participants and beneficiaries request to review any reports (or certain information or data) that is reported?
Do any of the reports required by ERISA and the Code fail to collect information that data users other than the Agencies, including the public at large, data aggregators, and participant advocates, would find useful? If so, which reports and information, and how could reports be modified to collect this information in a cost-effective manner? How would this information be used and how would requesting this information benefit retirement plan participants and beneficiaries, plans, or others? What information should be publicly available, and, if so, how might confidentiality, security, or other concerns be managed (
Would participants, beneficiaries, and plans benefit from increased coordination between the Agencies regarding one or more reporting or disclosure requirements and, if so, how? What steps could the Agencies take to achieve such coordination, for example, which specific disclosures, reports, or information could be effectively harmonized by the Agencies and how could the Agencies do so in a cost-effective manner?
SECURE 2.0 section 319(b)(3) explicitly provides that the Agencies may “conduct appropriate surveys and data collection to obtain any needed information.” If this authority were used, what data or information should be collected, and what are cost-effective methods that the Agencies could employ to collect such data or information, for example, by consulting with a balanced group of participant and employer representatives, conducting focus groups, preparing surveys, or holding a joint hearing?
Is there any information or are there any suggestions that the Agencies should consider that are not addressed by the questions in this RFI and that may be important to achieve the desired effectiveness of reporting and disclosures as set forth in SECURE 2.0 section 319?
Signed at Washington, DC.
Coast Guard, Department of Homeland Security (DHS).
Notice of proposed rulemaking.
The Coast Guard is proposing to amend and update its list of recurring safety zone regulations that take place in the Coast Guard Sector Ohio Valley area of responsibility (AOR). Through this rule the current list of recurring safety zones is proposed to be updated with revisions, additional events, and removal of events that no longer take place. This proposed rule would reduce administrative costs involved in producing separate proposed rules for each individual recurring safety zone and serve to provide notice of the known recurring safety zones throughout the year. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before February 22, 2024.
You may submit comments identified by docket number USCG-2023-0904 using the Federal Decision Making Portal at
If you have questions about this proposed rulemaking, call or email MST2 Bryan Crane, Sector Ohio Valley, U.S. Coast Guard; telephone 502-779-5334, email
The Captain of the Port Sector Ohio Valley (COTP) proposes to amend section 165.801 of Title 33 of the Code of Federal Regulations (CFR) to update our regulations for annual fireworks displays and other events in the Eighth Coast Guard District requiring safety zones with respect to those in Sector Ohio Valley.
The current list of annual and recurring safety zones in Sector Ohio Valley's area of responsibility (AOR) is published under Table 1 of 33 CFR 165.801 for annual safety zones in the AOR.
The Coast Guard proposes to amend and update the safety zone regulations under 33 CFR part 165 to include the most up to date list of recurring safety zones for events held on or around navigable waters within Sector Ohio Valley's AOR. These events include air shows, fireworks displays, and other marine related events requiring a limited access area restricting vessel traffic for safety purposes. The current list in 33 CFR 165.801 needs to be amended to provide new information on existing safety zones, and to include new safety zones expected to recur annually or biannually, and to remove safety zones that are no longer required. Issuing individual regulations for each new safety zone, amendment, or removal of an existing safety zone would create unnecessary administrative costs and burdens. This single proposed rulemaking would considerably reduce administrative overhead and provide the public with notice through publication in the
The Coast Guard encourages the public to participate in this proposed rulemaking through the comment process so that any necessary changes can be identified and implemented in a timely and efficient manner. The Coast Guard will address all public comments accordingly, whether through response, additional revision to the regulation, or otherwise.
Part 165 of 33 CFR contains regulations establishing limited access areas to restrict vessel traffic for the safety of persons and property. Section 165.801 establishes recurring safety zones to restrict vessel transit into and through specified areas to protect spectators, mariners, and other persons and property from potential hazards presented during certain events taking place in the AOR. This section requires amendment from time to time to properly reflect the recurring safety zone regulations in the AOR. This proposed rule would amend and update § 165.801 by revising the current Table 1.
This proposed rule would add the following 3 safety zones to the existing Table 1 section 165.801 as follows:
These new recurring events would be reflected in the table in the general date order in which they will occur, and the current recurring events would be reordered, as shown in the proposed regulatory text below.
This proposed rule would amend the following 2 safety zones to the existing Table 1 section 165.801 as follows:
The effect of this proposed rule would be to restrict general navigation in the safety zones during the events. Vessels intending to transit the designated waterway through the safety zones would only be allowed to transit the area when the COTP, or a designated representative, has deemed it safe to do so or at the completion of the event. The proposed annually recurring safety zones are necessary to provide for the safety of life on navigable waters during the events.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB).
The Coast Guard expects the economic impact of this proposed rule to be minimal, therefore a full regulatory evaluation is unnecessary. This proposed rule would establish safety zones limiting access to certain areas
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above this proposed rule would not have a significant economic impact on any vessel owner or operator.
If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this proposed rule would have a significant economic impact on it, please submit a comment (see
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this proposed rule. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please call or email the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132 (Federalism), if it has a substantial direct effect on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this proposed rule does not have tribal implications under Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments) because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this proposed rule has implications for federalism or Indian tribes, please call or email the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or Tribal Government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the potential effects of this proposed rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, Rev. 1, associated implementing instructions, 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. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket. For instructions on locating the docket, see the
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to call or email the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard is proposing to amend 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051, 70124; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 00170.1, Revision No. 01.3.
Office of Elementary and Secondary Education, Department of Education.
Proposed priorities, requirements, definitions, and selection criteria.
The Assistant Secretary for Elementary and Secondary Education proposes priorities, requirements, definitions, and selection criteria under the Comprehensive Centers Program, Assistance Listing Number 84.283B. The Assistant Secretary may use one or more of these priorities, requirements, definitions, and selection criteria for competitions in fiscal year (FY) 2024 and later years. We intend to award grants to establish Comprehensive Centers that provide high-quality capacity-building services to State, regional, and local educational agencies and schools that improve educational opportunities and outcomes, close achievement gaps, and improve the quality of instruction for all students.
We must receive your comments on or before February 22, 2024.
Comments must be submitted via the Federal eRulemaking Portal at
Dr. Michelle Daley. Telephone: (202) 987-1057. Email:
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We invite you to assist us in complying with the specific requirements of Executive Orders 12866, 13563, and 14094 and their overall requirement of reducing regulatory burden that might result from these proposed priorities, requirements, definitions, and selection criteria. Please let us know of any further ways we could reduce potential costs or increase potential benefits while preserving the effective and efficient administration of the program.
During and after the comment period, you may inspect public comments about the proposed priorities, requirements, definitions, and selection criteria by accessing
Commenters highlighted the importance of including Tribes in developing Centers' five-year service plans to carry out authorized activities for the Comprehensive Centers Program. Commenters emphasized Tribal inclusion on Center advisory boards (described in section 203(g) of the ETAA) and participation in annual planning to align goals among SEAs, LEAs, IHEs, and TEAs to generate greater synergy for more meaningful changes and success for Native persons within the educational system.
Tribal leaders broadly affirmed the need for capacity-building services within the areas of focus of the Comprehensive Centers, in the following order of importance: (1) implement and scale up evidence-based programs, practices, and interventions that directly benefit recipients that have disadvantaged students or high percentages or numbers of students from
While specific needs and recommendations varied by region, the most common needs identified across all 10 RACs were: (1) supporting teachers, school leaders, and school personnel, including addressing workforce shortages, supporting educator preparation programs and pathways, strengthening recruitment and retention, and diversifying the educator workforce; (2) supporting strong instruction and academic achievement, including supporting evidence-based math and literacy instruction, ensuring equity and addressing issues of disproportionality, addressing opportunity gaps to promote academic achievement and growth for all learners, and promoting access to a high-quality early childhood education; (3) supporting student populations with specific learning needs, including early grades, English learners, multilingual learners, children with disabilities, and growing populations of refugee and immigrant children and youth; (4) supporting student well-being and mental health; (5) promoting safe and engaged school communities, including promoting authentic parent and community engagement, positive school climate, and addressing issues of chronic absenteeism; and (6) promoting career and postsecondary educational pathways.
Education stakeholders noted that identified needs were not mutually exclusive and there is considerable overlap across educational priorities that may require coordinated approaches to implementing ESEA programs, promoting strong instruction, supporting educators, ensuring equity, and supporting school communities' academic, social emotional, and mental health needs. Detailed recommendations for services to meet those needs are included in the individual report from each RAC. Some examples of RAC recommendations included: (1) providing professional development to assist teachers in translating evidence-based practices into educator-friendly tools, resources, and training; (2) creating resources to support effective family engagement and improve academic achievement; (3) supporting data use and disaggregation to better identify and understand the needs of special student populations; (4) identifying and disseminating evidence-based approaches to meeting student instructional needs; (5) developing, implementing, and evaluating “grow your own” and apprenticeship programs as well as alternative pathways into the teaching profession; (6) developing targeted recruitment strategies including financial incentives, scholarship programs, and marketing campaigns highlighting the value of the profession to attract more individuals from diverse backgrounds to the profession; (7) supporting LEAs to provide differentiated and evidence-based professional learning opportunities to both novice and experienced teachers that are specific to the needs and context of their unique LEA and/or school; (8) supporting educators in identifying high-quality curricular and digital learning materials; (9) supporting SEAs and LEAs in developing new and innovative secondary and postsecondary pathways that emphasize applied learning and mastery; (10) supporting partnerships with local communities, local Tribes, and Tribal governments to identify local career needs and work-based learning opportunities and appropriate pathways; (11) supporting LEAs in developing resource allocation systems that allow resources to be focused on student learning (
We propose three priorities. The Assistant Secretary may use one or more of these priorities for the FY 2024 Comprehensive Centers Program competition or for any subsequent competition.
The ESEA holds States accountable for closing achievement gaps and ensuring that all children, regardless of race, ethnicity, family income, English language proficiency, or disability, receive a high-quality education and meet challenging State academic standards.
The ETAA authorizes support for not less than 20 grants to establish Comprehensive Centers to support State and local educational systems to implement activities described in the ESEA to improve academic opportunities and outcomes for students. Centers are operated through cooperative agreements with the U.S. Department of Education. Centers focus on building the capacity of those receiving Comprehensive Center services (recipients) in one of four dimensions of capacity-building: human, organizational, policy, and resource. Recipients primarily include staff of SEAs and, as appropriate, REAs, including TEAs as defined in ESEA section 6132(b)(3); LEAs; and schools.
Under section 203(a)(2) of the ETAA, the Department must establish at least one Center in each of the 10 geographic regions served by the Department's Regional Educational Laboratories authorized under section 941(h) of the Educational Research, Development, Dissemination, and Improvement Act of 1994. The proposed funding for Centers established under the ETAA must take into consideration the school-age population, proportion of economically disadvantaged students, increased cost burdens of service delivery in rural areas, and number of schools identified for improvement under ESEA section 1111(d).
Section 203(d) of the ETAA directs the Centers to provide assistance to
The Department last conducted a competition in 2019 and made five-year awards to 19 Regional Centers and one National Comprehensive Center (National Center). The 19 Regional Centers provide high-quality intensive capacity-building services to State clients and recipients to identify, implement, and sustain effective evidence-based (as defined in 34 CFR 77.1) practices that support improved educator and student outcomes. The National Center provides high-quality universal and targeted capacity-building services to address: high-leverage problems identified in Regional Center service plans; common findings from finalized Department monitoring reports or audit findings; implementation challenges faced by States and Regional Centers; and emerging national education trends. Prior Comprehensive Centers competitions also funded national Content Centers, which provide focused services in areas of high national need. An additional Content Center, funded in response to 2016 appropriations language and a new authority in the ESEA, focuses on students at risk of not attaining full literacy skills due to a disability.
Through the proposed priorities in this document, the Department intends to maximize the ability of the Comprehensive Centers to be flexible and responsive to specific State and local client needs while also providing leadership and focused support on issues of national importance to support education systems through a time of continued challenge and transition. This approach aligns with “Raise the Bar: Lead the World”
The Department believes that the best way to support State and local efforts in achieving academic recovery and excellence through the Comprehensive Centers Program, consistent with the requirements of both the ESEA and the ETAA, is by supporting the capacity of State and local educational systems to improve core instruction, enable conditions to accelerate learning and deliver a comprehensive and rigorous education for every student, attend to the social, emotional, and mental wellbeing of school communities, eliminate the educator shortage, provide pathways to multilingualism, and meet the unique needs of all students. The Comprehensive Centers Program is also a critical support to SEAs, LEAs, and schools working to implement evidence-based practices to help accelerate academic recovery in math and literacy, while also promoting equity in student access to educational resources and opportunities to improve student outcomes and close opportunity gaps.
Additionally, and as noted throughout this document, the Department is interested in supporting the implementation of evidence-based approaches to addressing important educational challenges. As an important complement to the research and evaluation and research-related technical assistance function provided by the RELs, under the proposed priorities, Comprehensive Centers would focus capacity-building services on selecting, implementing, and sustaining evidence-based programs, policies, practices, and interventions. In doing this work, Centers must consider clients' capacity to select and implement evidence-based approaches, particularly for practice areas or populations where available evidence may be limited; help clients with implementation of evidence-based interventions that will help learners accelerate their learning and achievement; and document and disseminate information about their results. More information about using and building evidence is available in the Department's Non-Regulatory Guidance: Using Evidence to Strengthen Education Investments, which can be found at
To support capacity-building that is customer-focused, results-driven, and most likely to help recipients sustain positive impact on students, we believe the Centers must focus services on helping recipients to (1) identify root causes of, and select the most appropriate and effective evidence-based solutions to address, high-leverage educational problems, (2) create sustainable organizational structures and performance management systems that help recipients set priorities for using their resources to achieve desired results, (3) increase their ability to use those structures and systems to ensure that LEAs and schools are provided high-quality services and supports, (4) support the implementation and scaling of evidence-based strategies in LEAs and schools, (5) identify and implement a continuum of supports and interventions to address the specific and varying needs of LEAs and schools, (6) support the sustainability of State- and local-led approaches, and (7) contact and engage with entities that have not asked for targeted support but may be in need of it based on available data.
We believe three tiers of services can be offered: (1) universal, (2) targeted, and (3) intensive. Within the proposed priorities for the Comprehensive Centers, Regional Centers would specialize in providing intensive supports, whereas National and Content Center(s) would primarily provide targeted and universal services.
Consistent with the RAC findings and recommendations and the requirements in the ESEA and ETAA, the proposed priorities address service delivery in all tiers related to the teaching and learning of all children, including those with disabilities and who are English Learners and multilingual; supporting school improvement activities; maximizing flexibility and responsiveness; and enabling more coherent, coordinated, and efficient service delivery to all States, while minimizing duplication of services across 14 Regional Centers, 4 Content Centers, and one National Center. Under the proposed priorities, Regional Centers and the National Center would address critical needs related to teaching and learning, while remaining flexible to address emerging needs, enhancing the ability of the Department to provide focused services in areas of high national need through the Content Centers. Such delineation would support a balance of responsiveness and coherent, coordinated, and efficient service delivery across Comprehensive Centers.
Under the proposed priorities, the Comprehensive Centers would operate as a network comprised of National and Content Centers that identify and provide scalable solutions at the national level that can be replicated in States, and Regional Centers that serve as the entry point to the network and focus on providing individualized, intensive, and responsive support to meet the specific needs of States and systems within their regions.
First, under the proposed priorities, the National Center would address
The National Center would also support the implementation and scale-up of evidence-based practices across the Nation. For example, the National Center might begin by convening practitioners and education system leaders who were successfully addressing a common need using one or more evidence-based practices to elicit practitioner and leader feedback about their perceived barriers and success factors in implementing those practices. Using that feedback, the National Center could then develop and disseminate resources and tools that supported broader implementation of the practices, getting buy-in from stakeholders and supporting LEAs in change management and professional development. The National Center would disseminate these effective universal capacity-building resources and tools nationally and through the Regional Centers and other Federal technical assistance providers (federally funded providers), to provide targeted opportunities for SEA and LEA peers to work together to apply and implement them.
Additionally, the National Center would serve as the core of the Comprehensive Center Network (CCNetwork), which would enable it to identify common implementation challenges and emerging national education issues facing States across regions and content areas and to coordinate support among Regional and Content Centers. In this role, the National Center's activities could include facilitating peer learning among Centers and their clients, and identifying best practices in providing and scaling effective capacity-building services that will enhance the effectiveness of services provided across the network. The National Center would also most effectively cooperate with other federally funded providers to identify gaps in services where the National Center may provide needed support and avoid duplication of services across Federal investments. Finally, the National Center would most effectively disseminate resources from the CCNetwork to potential recipients.
To effectively serve in this role, under the proposed requirements and selection criteria, the National Center must have expertise in implementation science, adult learning, and developing effective training materials for adults, to enable it to design effective universal capacity-building tools to assist Regional Centers in taking effective practices to scale within their States.
Under the proposed priorities, the National Center would provide services to SEAs, LEAs, REAs, TEAs, and other recipients, in addition to Regional and Content Centers, to address identified national needs. Accordingly, under the proposed requirements, Regional Centers must be poised to share timely information from a variety of regional stakeholders about their capacity needs with the National Center and must reserve a portion of their time to support their States in participating in targeted capacity-building services facilitated through National or Content Centers and implementing the tools and resources the National and Content Centers produce.
Under the proposed priorities, Regional Centers would serve as the entry point for States to the CCNetwork and support States in navigating available support from the CCNetwork and other federally funded providers. The Department acknowledges the importance of aligning Federal supports to State and local needs within each identified region; therefore, we propose closely aligning these centers to the existing REL regions, while also enhancing support for States and recipients with higher needs or special initiatives being undertaken by State, intermediate, or local educational agencies, or BIE-funded schools, as appropriate, which may require special assistance from the Regional Center.
In turn, under the proposed priorities, the Content Centers funded under this program would work to increase the depth of knowledge and expertise available to Regional Centers, SEAs, and LEAs in key areas of high national importance and need. Content Centers would complement the work of the Regional Centers by providing targeted, universal, and, where appropriate, intensive capacity-building services, including information, publications, tools, and specialized technical assistance based on evidence-based practices, in their specific content area. The Content Centers would also play a key role in improving efficiency in developing and disseminating technical assistance by, for example, avoiding the duplication and higher costs of parallel efforts by two or three Regional Centers. Content Centers must have national subject matter expertise and practitioner experience to ensure both the ability to draw on the latest research and evidence related to the area of need, as well as to provide high-quality assistance that draws from the experience of professionals who have successfully led State and local agencies and provided successful high-quality capacity-building services.
To meet specific areas of need, including topics identified by the RACs and through monitoring of ESEA programs that are not otherwise served by the National Center or other Department investments, the Assistant Secretary proposes funding priorities for four Content Centers: (1) the Center on English Learners and Multilingualism, (2) the Center for Early School Success, (3) the Center on Fiscal Equity, and (4) the Center on Strengthening and Supporting the Educator Workforce.
The Department also acknowledges that some important priorities identified through Tribal consultation and by the RACs are already being addressed through other significant Federal investments in technical assistance. Such investments include substantial support provided through technical assistance centers funded under Title IV, Part A of the ESEA and the Bipartisan Safer Communities Act (BSCA) for promoting student well-being and mental health, establishing safe and supportive school communities, and addressing school climate and chronic absenteeism; investments in family engagement through the Statewide Family Engagement Centers; and significant support provided through centers funded under IDEA technical assistance and dissemination programs for children with disabilities. Where services are already being provided, the Department encourages Comprehensive Centers to refer to or partner with those federally funded providers, and to focus Comprehensive Center services on meeting gaps in identified needs that are not yet being addressed through other Federal investments.
Projects that propose to establish a National Center to (1) provide high-quality, high-impact technical assistance and capacity-building services to the Nation that are designed to improve educational opportunities and educator and student outcomes and (2) coordinate the work of the CCNetwork to effectively use program
The National Center must design and implement an effective approach to providing high-quality, useful, and relevant universal, targeted, and, as appropriate and in partnership with Regional Centers, intensive capacity-building services that are likely to achieve desired recipient outcomes. The approach must be driven by adult learning strategies and incorporate implementation, improvement, and systems change frameworks. The approach must promote alignment across interconnected areas of need, programs, and agency systems.
The National Center must implement effective strategies for coordinating with the Regional Centers and Content Centers to assess educational needs; coordinate common areas of support across Centers; share and disseminate information about CCNetwork services, tools, and resources to maximize the reach of the CCNetwork across clients and education stakeholders; coordinate with other federally funded providers regarding the work of the CCNetwork and support navigation of available support for clients; and support the selection, implementation, scale-up, and dissemination of evidence-based practices that will improve educational outcomes, particularly academic achievement in math and literacy, and close opportunity gaps for all students, particularly for groups of students with the greatest need, including students from low-income families and students attending schools implementing comprehensive support and improvement or targeted or additional targeted support and improvement activities under section 1111(d) of the ESEA.
Services must address: common high-leverage problems identified in Regional Center service plans (as outlined in the Program Requirements for the National Center); findings from finalized Department monitoring reports or audit findings; implementation challenges faced by States and LEAs related to teaching, learning, and development; needs of schools designated for improvement; needs related to closing achievement and opportunity gaps; needs to improve core instruction; and emerging education topics of national importance.
The National Center must provide universal and targeted capacity-building services that demonstrably assist SEAs, REAs, TEAs, LEAs, and Regional Center clients and recipients to—
(1) Implement approved ESEA Consolidated State Plans, with preference given to implementing and scaling evidence-based programs, practices, and interventions that directly benefit entities that have high percentages or numbers of students from low-income families as referenced in Title I, Part A of the ESEA (ESEA sec. 1113(a)(5));
(2) Implement and scale up evidence-based programs, practices, and interventions that lead to the increased capacity of SEAs and LEAs to address the unique educational challenges and improve outcomes of schools implementing comprehensive support and improvement activities or targeted or additional targeted support and improvement activities as referenced in Title I, Part A of the ESEA (ESEA sec. 1111(d)) and their students;
(3) Implement State accountability and assessment systems consistent with Title I, Part A of the ESEA (ESEA section 1111(b)-(d));
(4) Implement and scale up evidence-based programs, practices, and interventions that improve instruction and outcomes in core subjects, including math and literacy instruction;
(5) Address the unique educational obstacles faced by rural and Tribal students; and
(6) Implement and scale up evidence-based programs, practices, and interventions that address other emerging education topics of national importance that are not being met by another federally funded provider (
An applicant under this priority must demonstrate how it will cultivate a network of national subject matter experts from a diverse set of perspectives or organizations to provide capacity-building support to Regional Centers and clients regarding the ESEA topical areas listed above and other emerging education issues of national importance.
Projects that propose to establish Regional Centers to provide high-quality, intensive capacity-building services to State and local clients and recipients to assist them in selecting, implementing, and sustaining evidence-based programs, practices, and interventions that will result in improved educator practice and student outcomes, especially in math and literacy.
Each Regional Center must provide high-quality, useful, and relevant capacity-building services that demonstrably assist clients and recipients in—
(1) Carrying out Consolidated State Plans approved under the ESEA, with preference given to the implementation and scaling up of evidence-based programs, practices, and interventions that directly benefit recipients that have high percentages or numbers of students from low-income families as referenced in Title I, Part A of the ESEA (ESEA sec. 1113(a)(5)) and recipients that are implementing comprehensive support and improvement activities or targeted or additional targeted support and improvement activities as referenced in Title I, Part A of the ESEA (ESEA sec. 1111(d));
(2) Implementing, scaling up, and sustaining evidence-based programs, practices, or interventions that focus on key initiatives that lead to LEAs and schools improving student outcomes. Key initiatives may include implementing evidence-based practices to help accelerate academic recovery in math and literacy (include, high-impact tutoring, high-quality summer and after-school programming, and effective interventions to reduce chronic absenteeism), improving core instruction, implementing innovative approaches to assessment, responding to educator shortages, or developing aligned and integrated agency systems;
(3) Addressing the unique educational obstacles faced by underserved populations, including students from low-income families, students of color, students living in rural areas, Tribal students, English learners, students in foster care, migratory children, immigrant children and youth, and other student populations with specific needs defined in the ESEA; and
(4) Improving implementation of ESEA programs by addressing corrective actions or results from audit findings and ESEA program monitoring, conducted by the Department, that are programmatic in nature, at the request of the client.
Regional Centers must effectively work with the National Center and Content Centers, as needed, to assist
Applicants must propose to operate a Regional Center in one of the following regions:
Projects that propose to establish Content Centers to provide targeted and universal capacity-building services in a designated content area of expertise to SEA, REA, TEA, and LEA clients designed to improve educational opportunities, educator practice, and student outcomes.
Content Centers must be designed to build the capacity of practitioners, education system leaders, public schools serving preschool through 12th grades (P-12) (which may include Head Start and community-based preschool), LEAs, and SEAs to use evidence in the designated content area. Capacity-building services may include, for example, developing evidence-based products and tools, and providing services that directly inform the use of evidence in a State or local policy or program or improved program implementation to achieve desired educational outcomes. Services must promote the use of the latest evidence, including research and data; be effectively delivered using best practices in technical assistance and training; and demonstrate a rationale for how they will result in improved recipient outcomes.
Content Centers must support Regional Centers, as needed, with subject matter expertise to enhance the intensive capacity-building services provided by the Regional Centers or to design universal or targeted capacity-building services to meet identified SEA, REA, TEA, or LEA needs.
Content Centers must effectively coordinate and align targeted capacity-building services with the National Center, Regional Centers, and other federally funded providers, as appropriate, to address high-leverage problems and provide access to urgently needed services to build Centers' capacity to support SEAs and local clients. Content Centers must effectively coordinate with the National Center, Regional Centers, and other federally funded providers to assess potential client needs, avoid duplication of services, and widely disseminate products or tools to practitioners, education system leaders, and policymakers in formats that are high quality, easily accessible, understandable, and actionable to ensure use of services by as many SEA, REA, TEA, and LEA recipients as possible.
Applicants must propose to operate a Content Center in one of the following areas:
(1)
(2)
(3)
(4)
When inviting applications for a competition using one or more priorities, we designate the type of each priority as absolute, competitive preference, or invitational through a notice in the
The Department proposes program and application requirements to support effective administration of Comprehensive Center services.
The proposed application requirements are designed to complement the proposed program requirements. Under the proposed program requirements, Centers would be required to model best practices in implementation design and performance management. Under the proposed application requirements, applicants must demonstrate how they will model best practices, including by describing strategies to identify the root causes driving high-leverage problems, select the evidence-based practices that most effectively address those causes, and implement effective practices in implementation design and performance management to achieve desired outcomes.
In meeting the proposed program requirement for annual service plans, proposed capacity-building services must be in service of outcomes that (a) are co-designed with clients; (b) address authentic needs based on needs-sensing activities; (c) are clear and measurable; and (d) have associated achievable, specific targets. Long-term goals should serve as a “north star” for the work of the Centers and should be in service of their clients' goals. This requires highly inclusive needs sensing processes that include relevant stakeholders and recipients in the process of defining the needs to be addressed, and disciplined processes by which Centers help clients to define the specific outcomes they aim to achieve that will result in improved educational outcomes.
In addition, the proposed requirements for stakeholder engagement would ensure that meaningful efforts are made to engage with, and incorporate the views of, a broad range of potential clients, including those who did not initially request support but may benefit from it based on available data. These stakeholder engagement requirements would be reinforced through the proposed communication and dissemination requirements, which would require Centers to ensure services are broadly disseminated to reach as many potential clients as possible. Finally, the proposed program requirements for performance management would require Centers to quantify and collect data on the use, reach, and impact of Center services in alignment with the performance measures for this program.
Effective service delivery requires highly qualified personnel who bring both subject matter content and technical expertise. Under the proposed program requirements, subject matter experts must include professionals with significant and demonstrated scholarly expertise in content areas and approaches relevant to the work the Center undertakes as well as practitioners who have significant—and, ideally, recent—experience directly leading State or local educational systems. Under the proposed application requirements, applicants must describe how highly qualified personnel will combine subject matter expertise with strong demonstrated expertise providing effective technical assistance through teaching and leading professional development in those content areas.
Additionally, successfully managing a Center, developing deep customer-focused relationships with States, and managing complex projects with varied stakeholders requires significant investment of personnel time and leadership. Under the proposed program requirements, Centers must strive to achieve as close to full-time equivalency (FTE) as practicable for all personnel in key leadership and service-delivery roles, and at least .75 FTE for the Program Director, to help ensure that sufficient leadership and expertise are available to support effective management and service provision. Additionally, the proposed program requirements for the National Center require at least 1 FTE Project Director, or co-Directors each with at least .75 FTE, to ensure sufficient leadership capacity for the project.
While Centers assist clients in selecting evidence-based practices, they additionally help them develop and implement practices that may become models to others. To expand the reach of the Centers, each Center must effectively curate and disseminate effective practices. Under the proposed program requirement for communications and dissemination plans, Centers must intentionally plan for how information will be used and by whom, and what strategies most effectively engage their target audiences to expand the reach and potential impact of their services, tools, and products. And under the proposed program requirement for performance management systems, Centers must measure and report on the effectiveness of these strategies, including the reach of their services, to monitor and improve the efficacy of their communication and dissemination strategies.
In providing services within the CCNetwork, and in alignment with other providers who are servicing the same clients, Centers must approach collaboration intentionally to reduce client burden in interacting with multiple providers, and to ensure that Federal resources are being used most efficiently and effectively to meet a variety of needs across federally funded providers. While each Center may have a specific recipient type or area of
Under the proposed program requirements relating to CCNetwork peer learning, Centers must share with other regions knowledge of effective practices and approaches to capacity-building used with their clients. We believe that Centers will benefit by learning from each other and that this requirement would promote the achievement of each Center's intended outcomes, as well as enhance the overall impact of the CCNetwork.
The Department recognizes that we cannot anticipate every need a State may have, and that critical needs could emerge throughout the grant period that will require Centers to rapidly respond to meet new demands. For that reason, the Department proposes to require each Center to reserve funds annually to address emerging needs.
The Assistant Secretary proposes the following program requirements for this program. We may apply one or more of these requirements in any year in which this program is in effect.
(1) Develop service plans annually for carrying out the technical assistance and capacity-building activities to be delivered by the Center in response to educational challenges facing students, practitioners, and education system leaders. Plans must include: High-leverage problems to be addressed, including identified client needs, capacity-building services to be delivered, time-based outcomes (
(2) Develop and implement capacity-building services, including tools and resources, in partnership with State and local clients and recipients to reflect and address specific client needs and contexts and promote sustainable evidence utilization to address identified educational challenges.
(3) Develop and implement an effective performance management system that integrates continuous improvement to promote effective achievement of client outcomes. The system must include methods to measure and monitor progress towards agreed upon outcomes, outputs, and milestones and to measure the reach, use, and impact of the services being delivered to ensure capacity-building services are implemented as intended, reaching intended clients and recipients, and achieving desired results. Progress monitoring must include periodic assessment of client satisfaction and timely identification of changes in State contexts that may impact the project's success. The performance management system must include strategies to report on defined program performance measures.
(4) Develop and implement a stakeholder engagement system to regularly communicate, engage, and coordinate, using feedback to inform improvement, across organizational levels (Federal, State, and local), and facilitate regular engagement of stakeholders involved in or affected by proposed services. This system must provide regular and ongoing opportunities for outreach activities (
(5) Develop and implement a high-quality personnel management system to efficiently obtain and retain the services of nationally recognized technical and content experts and other consultants with direct experience working with SEAs, REAs, and LEAs. The Center must ensure that personnel have the appropriate expertise to deliver high-quality capacity-building services that meet client and recipient need and be staffed at a level sufficient for achieving the goals of its assigned projects and responsibilities.
(6) Develop and implement a comprehensive communication and dissemination plan that includes strategies to disseminate information in multiple formats and media (
(7) Identify and enter into partnership agreements with federally funded providers, State and national organizations, businesses, and industry experts, as applicable, to support States in the implementation and scaling-up of evidence-based programs, practices, and interventions, as well as reduce duplication of services and engagement burden to States. Where appropriate, the agreements should document how the partnerships might advance along a continuum to effectively meet program and client goals.
(8) Within 90 days of receiving funding for an award, demonstrate to the Department that it has secured client and partner commitments to carry out proposed annual service plans.
(9) Participate in a national evaluation of the Comprehensive Centers Program.
(1) Design and implement robust needs sensing activities and processes to consult with and integrate feedback from the Department, Regional and Content Centers, and advisory boards that surface high-leverage problems that could be effectively addressed in developing the national annual service plan.
(2) Collaborate with Regional and Content Centers to implement universal and targeted services for recipients to address high-leverage problems identified in the annual service plan. In providing targeted services (
(3) Develop and implement a strategy to recruit and retain a comprehensive cadre of national subject matter experts that includes qualified education practitioners, researchers, policy professionals, and other consultants with (1) direct experience working in or with SEAs, REAs, and LEAs and (2) in-depth expertise in specific subject areas with an understanding of State contexts available to support universal and targeted services of the National Center and intensive capacity-building services of Regional Centers. Cadre experts must have a proven record of designing and implementing effective capacity-building services, using evidence effectively, and delivering quality adult learning experiences or professional development experiences that meet client and recipient needs and must have recognized subject matter expertise including publishing in peer-reviewed journals and presenting at national conferences on the ESEA programs or content areas for which they are engaged as experts to provide universal, targeted, or intensive capacity building.
(4) Reserve not less than one half of the annual budget to provide universal, targeted, and, as needed, intensive services to address topics 1-5 enumerated in the priority for this Center and as approved by the Department in the annual service plan.
(5) Include in the communications and dissemination plan, and implement, processes for outreach activities (
(6) Design and implement communications and dissemination vehicles for the CCNetwork, including maintaining the CCNetwork website with an easy-to-navigate design that meets government or industry recognized standards for accessibility, including compliance with Section 504 of the Rehabilitation Act of 1973, and maintain a consistent media presence, in collaboration with Regional and Content Centers and the Department Communications office, that promotes increased engagement.
(7) Develop peer learning opportunities for Regional and Content Center staff (and other partners, as appropriate) to address implementation challenges and scale effective practices to improve service delivery across the CCNetwork.
(8) Collect and share information about services provided through the CCNetwork for the purpose of coordination, collaboration, and communication across Centers and other providers, including an annual analysis of service plans to identify and disseminate information about services rendered across the CCNetwork.
(9) Ensure that the Project Director is capable of managing all aspects of the Center and is either staffed at 1 FTE or there are two Co-Project Directors each at a minimum of 0.75 FTE. The Project Director or Co-Project Directors and all key personnel must be able to provide services at the intensity, duration, and modality appropriate to achieving agreed-upon milestones, outputs, and outcomes described in annual service plans.
(10) Reserve not less than one third of the budget to address the program requirements for CCNetwork coordination (requirements 5 through 8).
(1) Actively coordinate and collaborate with the REL serving their region. Coordination must include annual joint need sensing in a manner designed to comprehensively inform service delivery across both programs while reducing burden on State agencies. The goals of this coordination and collaboration are to share, synthesize, and apply information, ideas, and lessons learned; to enable each type of provider to focus on its designated role; to ensure that work is non-duplicative; to streamline and simplify service provision to States and LEAs; and to collaborate on projects to better support regional stakeholders.
(2) Consult with a broad range of stakeholders, including chief State school officers and other SEA leaders, TEAs, LEAs, educators, students, and parents, and integrate their feedback in developing the annual service plan to reflect the needs of all States (and to the extent practicable, of LEAs) within the region to be served.
(3) In developing the annual service plan, ensure services are provided to support students and communities with the highest needs, including recipients: (i) that have high percentages or numbers of students from low-income families as referenced in Title I, Part A of the ESEA (ESEA sec. 1113(a)(5)); (ii) that are implementing comprehensive support and improvement activities or targeted or additional targeted support and improvement activities as referenced in Title I, Part A of the ESEA (ESEA sec. 1111(d)); (iii) in rural areas; and (iv) serving student populations with demonstrated needs unmet or under-met through other Federal, State, or local interventions.
(4) Explore and provide opportunities to connect peers within and across regions.
(5) Collaborate with the National Center and Content Centers, as appropriate, including to support client and recipient participation in targeted capacity-building services, and obtain and retain the services of nationally recognized content experts through partnership with the National Center, Content Centers, or other federally funded providers.
(6) Support the participation of Regional Center staff in CCNetwork peer learning opportunities, including sharing information about effective practices in the region, to extend the Center's reach to as many SEAs, REAs, LEAs, and schools in need of services as possible while also learning about effective capacity-building approaches to enhance the Center's ability to provide high-quality services.
(7) Within 90 days of receiving funding for an award, provide to the Department copies of partnership agreements with the REL(s) in the region that the Center serves and, as appropriate, other Department-funded technical assistance providers that are charged with supporting comprehensive, systemic changes in States or Department-funded technical assistance providers with particular expertise (
(8) Be located in the region the Center serves. The Project Director must be capable of managing all aspects of the Center and be either at a minimum of 0.75 FTE or there must be two Co-Project Directors each at a minimum of 0.5 FTE. The Project Director or Co-Project Directors and key personnel must also be able to provide on-site
(1) Consult and integrate feedback from the National and Regional Centers in developing the annual service plan to inform high-quality tools, resources, and overall technical assistance in priority areas.
(2) Collaborate with Regional Centers to address specific requests for assistance from States within the regions and strengthen Regional Center staff knowledge and expertise on the evidence base and effective practices within its specific content area.
(3) Produce high-quality universal capacity-building services, and identify, organize, select, and translate existing key research knowledge and Department guidance related to the Center's content area and examples of workable strategies and systems for implementing provisions and programs that have produced positive outcomes for schools and students, and communicate the information in ways that are highly relevant and highly useful to State- and local-level policy makers and practitioners.
(4) Collaborate with the National Center and Regional Centers to convene States and LEAs, researchers, and other experts, including other Federal entities and providers of technical assistance as identified by the Department, to learn from each other about practical strategies for implementing ESEA provisions and programs related to the Center's area of focus.
(5) Support the participation of Content Center staff in CCNetwork peer learning opportunities with the goal of providing high-quality services while reaching as many SEAs, REAs, LEAs, and schools in need of services as possible.
(6) Within 90 days of receiving funding for an award, provide copies to the Department of partnership agreements with Department-funded technical assistance providers that are charged with supporting comprehensive, systemic changes in States or Department-funded technical assistance providers with particular expertise relevant to the Center's content area. Partnership agreements must define processes for coordination and support collaboration to meet relevant program requirements.
(1) Present a plan for operating the Comprehensive Center that clearly establishes the critical educational challenges proposed to be addressed by the Center, the impact the Center plans to achieve, including the proposed scope of services in relation to the number of SEAs, REAs, TEAs, LEAs, and, as appropriate, schools served, with respect to specific State and local outcomes that would represent significant achievement in advancing the efforts of State and local systems to improve educational opportunities and student outcomes, and proposes how the Center will efficiently and effectively provide appropriate capacity-building services to achieve the desired outcomes.
(2) Present applicable regional, State, and local educational needs, including relevant data demonstrating the identified needs, and including the perspectives of underrepresented groups, that could be addressed through capacity-building to implement and scale up evidence-based programs, practices, and interventions.
(3) Demonstrate how key personnel possess expert knowledge of statutory requirements, regulations, and policies related to ESEA programs, current education issues, and policy initiatives for supporting the implementation and scaling up of evidence-based programs, practices, and interventions.
(4) Demonstrate expertise in providing highly relevant and highly effective technical assistance (
(5) Present a logic model (as defined in 34 CFR 77.1) informed by research or evaluation findings that demonstrates a rationale (as defined in 34 CFR 77.1) explaining how the project is likely to improve or achieve relevant and expected outcomes. The logic model must communicate how the proposed project would achieve its expected outcomes (short-term, mid-term, and long-term), and provide a framework for both the formative and summative evaluations of the project consistent with the applicant's performance management plan. Include a description of underlying concepts, assumptions, expectations, beliefs, and theories, as well as the relationships and linkages among these variables, and any empirical support for this framework.
(6) Present a management plan that describes the applicant's proposed approach to managing the project to meet all program requirements related to needs assessment, stakeholder engagement, communications and dissemination, and personnel management.
(7) Present a performance management plan that describes the applicant's proposed approach to meeting the program requirements related to performance management, including the applicant's proposed strategy to report on defined program performance measures, and describes the criteria for determining the extent to which: capacity-building services proposed in annual service plans were implemented as intended; recipient outcomes were met (short-term, midterm, and long-term); recipient capacity was developed; and services reached and were used by intended recipients.
(8) Include, in the budget, a line item for an annual set-aside of five percent of the grant amount to support emerging needs that are consistent with the proposed project's intended outcomes, as those needs are identified in consultation with, and approved by, the OESE program officer. With approval from the program officer, the project must reallocate any remaining funds from this annual set-aside no later than the end of the third quarter of each budget period.
(1) Demonstrate expertise and experience in leading digital engagement strategies to attract and sustain the involvement of education stakeholders, including, but not limited to: implementing a robust web and social media presence and engagement, overseeing customer relations management, providing editorial support to Regional and Content Centers, and utilizing web analytics to improve content engagement.
(2) Describe the proposed approach to providing targeted capacity-building services, including how the applicant intends to collaborate with Regional Centers to identify potential recipients and estimate how many SEAs, REAs, TEAs, and LEAs it has the capacity to
(3) Describe the proposed approach to universal capacity-building services, including how many and which recipients it plans to reach and how the applicant intends to: measure the extent to which products and services developed actually address common problems; support recipients in the selection, implementation, and monitoring of evidence-based practices; improve the use of evidence with regard to emerging national education trends; and build recipient capacity in at least one of the four dimensions of capacity-building.
In addition to meeting the application requirements for all Centers, a Regional Center applicant must—
(1) Describe the proposed approach to intensive capacity-building services, including identification of intended recipients based on available data in each of the content areas identified, alignment of proposed capacity-building services to client needs, and engagement of clients who may not initiate contact to request services. The applicant must also describe how it intends to measure the readiness of clients and recipients to work with the Center; co-design projects and define outcomes; measure and monitor client and recipient capacity across the four dimensions of capacity-building; and measure the outcomes achieved throughout and at the conclusion of a project.
(2) Demonstrate that proposed key personnel have the appropriate expertise to deliver high-quality, intensive services that meet client and recipient needs similar to those in the region to be served.
(1) Describe the proposed approach to carry out targeted capacity-building services that increase the use of evidence-based products or tools regarding the designated content area amongst practitioners, education system leaders, elementary schools and secondary schools, LEAs, and SEAs.
(2) Describe the proposed approach to providing universal capacity-building services, including how it will develop evidence-based products or tools regarding the designated content area; widely disseminate such products or tools to practitioners, education system leaders, and policymakers in formats that are high quality, easily accessible, understandable, and actionable; identify intended recipients; and align proposed capacity-building services to client needs.
(3) Demonstrate that key personnel have appropriate subject matter and technical expertise to translate evidence into high-quality technical assistance services and products for State and local clients, including expertise applying adult-learning principles and implementation science to the delivery of technical assistance services and products.
We also propose to replace certain terms established in the Notice of Final Priorities, Requirements, Definitions, and Performance Measures published in the
We also propose to use, in the proposed priorities, requirements, and selection criteria, the following terms, which are defined in the ESEA: “immigrant children and youth,” “migratory child,” and “tribal educational agency.”
The proposed priorities, requirements, and selection criteria also incorporate the following terms established for use in this program by the 2019 NFP: “capacity-building services,” “milestone,” and “outputs.” We have included the definitions of those terms in Appendix 1 to this document.
(1)
(2)
(3)
(4)
(1)
(2)
(3)
The Assistant Secretary proposes the following selection criteria for evaluating an application under this program. We may apply one or more of these criteria in any year in which this program is in effect. In the notice inviting applications we will announce the maximum possible points available under each criterion.
(1) The extent to which the proposed project represents an exceptional approach to responding to the priority or priorities established for the competition that will likely result in building SEA capacity to implement State-level initiatives and support local- and school-level initiatives that improve educational outcomes, close achievement gaps, and improve the quality of instruction for all students.
(2) The extent to which the applicant demonstrates an exceptional approach to developing and delivering high-quality, useful, and relevant capacity-building services that—
(a) In the case of an applicant for the National Center, would be expected to assist SEAs, REAs, TEAs, LEAs, and Regional Center clients and recipients, including those who do not proactively request assistance, to address the activities described in the priority;
(b) In the case of an applicant for a Regional Center, would be expected to assist clients and recipients to address the activities described in the priority; and
(c) In the case of an applicant for a Content Center, would be expected to assist clients and recipients, including those who do not proactively request assistance, to address activities described in the priority related to the designated content area.
(3) The extent to which the proposed technical assistance plan provides strategies that address the technical assistance needs of State and local educational systems in key areas of identified need, as evidenced by in-depth knowledge and understanding of—
(a) In the case of an applicant for the National Center, implementation challenges faced by States; evidence-based practices related to teaching, learning, and development; needs of schools designated for improvement; needs to improve core instruction; and emerging education topics of national importance;
(b) In the case of an applicant for a Regional Center, the specific educational goals and priorities of the States to be served by the applicant, including emerging priorities based on State-led reform efforts, and the applicable State and regional demographics, policy contexts, and other factors and their relevance to improving student outcomes, closing opportunity and achievement gaps, and improving instruction; and
(c) In the case of an applicant for a Content Center, State technical assistance needs and evidence-based practices related to the Content Center priority for which the applicant is applying.
(4) In the case of an applicant for the National Center, the extent to which the capacity-building and management plans propose an exceptional approach
(5) In the case of an applicant for a Regional Center, the extent to which the applicant's capacity-building plan proposes an exceptional approach to meeting the requirements for all Regional Centers.
(6) In the case of an applicant for a Content Center, the extent to which the applicant's capacity-building plan proposes an exceptional approach to meeting the requirements for all Content Centers.
(1) The extent to which the proposed performance management system and processes demonstrate an exceptional approach to integrating continuous improvement processes and evaluation that will result in regular and ongoing improvement in the quality of the services provided and increase the likelihood that recipient outcomes are achieved.
(2) The extent to which the proposed stakeholder and communication engagement system is likely to result in a high level of engagement with multiple potential beneficiaries or participants involved in or impacted by the proposed capacity-building activities to ensure that the proposed services reflect their needs, are delivered in a manner that is relevant and useful, and reach the largest number of recipients possible.
(3) The extent to which the proposed personnel management system includes performance management processes for staff, subcontractors, and consultants that enable effective hiring, developing, supervising, and retaining a team of subject-matter and technical assistance experts and professional staff that will effectively meet the needs of the project.
(4) The extent to which the proposed partnerships represent an intentional approach to collaboration that is likely to reduce client burden and to ensure that Federal resources are being used most efficiently and effectively to meet a variety of needs across federally funded providers.
(5) In the case of an applicant for the National Center, the extent to which the proposed project represents an exceptional management approach, including with respect to managing budgets; selecting, coordinating, and overseeing multiple consultant and subcontractor teams; managing communications and dissemination systems; and leading large-scale projects to coordinate with and deliver tools, training, and capacity-building services to governments, agencies, communities, schools, or other organizations.
(1) The extent to which key project personnel demonstrate the required expertise and relevant knowledge, understanding, and experience in operating and administering State and local educational systems to effectively support recipients.
(2) The extent to which the applicant has demonstrated experience providing high-quality, timely, relevant, and useful technical assistance and capacity-building services to State and local educational systems.
(3) The extent to which the applicant has demonstrated the ability to develop ongoing partnerships with leading experts and organizations nationwide or regionally, as appropriate, that enhance its ability to provide high-quality technical assistance and subject-matter expertise.
(4) In the case of an applicant for the National Center, the extent to which the applicant has demonstrated ability in operating a project of such scope.
Under Executive Order 12866, the Office of Management and Budget (OMB) must determine whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by OMB. Section 3(f) of Executive Order 12866, as amended by Executive Order 14094, defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $200 million or more (as of 2023 but to be adjusted every 3 years by the Administrator of OIRA for changes in gross domestic product); or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, territorial, or Tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise legal or policy issues for which centralized review would meaningfully further the President's priorities, or the principles set forth in this Executive order, as specifically authorized in a timely manner by the Administrator of OIRA in each case.
This proposed regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866 (as amended by Executive Order 14094).
We have also reviewed this proposed regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these proposed priorities, requirements, definitions, and selection criteria only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action would not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.
In accordance with these Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.
The Department believes that this proposed regulatory action would not impose significant costs on eligible entities, whose participation in our programs is voluntary, and whose costs can generally be covered with grant funds. As a result, the proposed regulatory action would not impose any particular burden, except when an entity voluntarily elects to apply for a grant. The proposed priorities, requirements, definitions, and selection criteria would help ensure that the grant program selects a high-quality applicant to implement activities that meet the goals of the program for each Center. We believe these benefits would outweigh any associated costs.
Executive Order 12866 and the Presidential memorandum “Plain Language in Government Writing” require each agency to write regulations that are easy to understand.
The Assistant Secretary invites comments on how to make the proposed priorities, requirements, definitions, and selection criteria easier to understand, including answers to questions such as the following:
• Are the requirements in the proposed priorities, requirements, definitions, and selection criteria clearly stated?
• Do the proposed priorities, requirements, definitions, and selection criteria contain technical terms or other wording that interferes with their clarity?
• Could the description of the proposed priorities, requirements, definitions, and selection criteria in the
• What else could we do to make the proposed priorities, requirements, definitions, and selection criteria easier to understand?
To send any comments on how the Department could make the proposed priorities, requirements, definitions, and selection criteria easier to understand, see the instructions in the
This document provides early notification of our specific plans and actions for this program.
The Assistant Secretary certifies that this proposed regulatory action would not have a significant economic impact on a substantial number of small entities. The U.S. Small Business Administration Size Standards define proprietary institutions as small businesses if they are independently owned and operated, are not dominant in their field of operation, and have total annual revenue below $7,000,000. Nonprofit institutions are defined as small entities if they are independently owned and operated and not dominant in their field of operation. Public institutions are defined as small organizations if they are operated by a government overseeing a population below 50,000.
Of the impacts we estimate accruing to grantees or eligible entities, all are voluntary. Therefore, we do not believe that the proposed priorities, requirements, definitions, and selection criteria would significantly impact small entities beyond the potential for increasing the likelihood of their applying for, and receiving, a competitive grant from the Department.
The proposed priorities, requirements, and selection criteria incorporate the following
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of New Hampshire. This revision proposes to approve reasonable available control technology (RACT) requirements for PAK Solutions, LLC, located in Lancaster, New Hampshire. This action is being taken under the Clean Air Act.
Written comments must be received on or before February 22, 2024.
Submit your comments, identified by Docket ID No. EPA-R01-OAR-2023-0576 at
Patrick Lillis, Air Quality Branch (AQB), Air and Radiation Division (ARD) (Mail Code 5-MD), U.S. Environmental Protection Agency, Region 1, 5 Post Office Square, Suite 100, Boston, Massachusetts, 02109-3912; (617) 918-1067;
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.
On December 14, 2022, the New Hampshire Air Resources Division (ARD) submitted a revision to its State Implementation Plan (SIP). The revision consists of an order establishing reasonably available control technology (RACT) requirements for PAK Solutions, LLC, located in Lancaster, New Hampshire. The RACT requirements are intended to limit emissions of volatile organic chemicals (VOCs) from the facility.
PAK Solutions, LLC (PAK) conducts commercial printing operations on a variety of plastic and film substrates with VOCs and solvent-containing inks. PAK owns and operates three printing presses that coat a variety of plastic and film substrates at its facility located on 16 Page Hill Road in Lancaster, New Hampshire. PAK operates a Ship & Shore Regenerative Thermal Oxidizer (RTO) to control VOC emissions from three printing presses. On August 24, 2022, PAK submitted an application for a RACT Order (Order) that would allow the company to generate and use Discrete Emissions Reductions (DERs) in order to comply with the VOC reduction requirements during periods when the RTO is shut down due to maintenance or malfunction.
RACT Order RO-0007 issued on December 14, 2022, by the New Hampshire DES requires PAK Solutions to comply with the VOC control standards specified in Env-A 1215
Regarding reporting and recordkeeping requirements, PAK is required to submit an annual report to NHDES on the projected use of credits (DERs) for the upcoming calendar year by November 30th. The requirements for this report are outlined in Env-A 3104.08,
EPA has reviewed RACT Order RO-0007 issued by the New Hampshire DES to PAK Solutions of Lancaster dated December 14, 2022. EPA is proposing an approval of this RACT Order into the New Hampshire SIP.
EPA is proposing to approve RACT Order RO-0007 issued by the New Hampshire DES to PAK Solutions of Lancaster on December 14, 2022, as a revision to the New Hampshire SIP. EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rule by following the instructions listed in the
In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference RACT Order RO-0007 dated December 14, 2022, issued by the New Hampshire DES to Pak Solutions of Lancaster, as discussed in Section I of this preamble. The EPA has made, and will continue to make, these documents generally available through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations.
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001); and
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act.
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Executive Order 12898 (Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations, 59 FR 7629, Feb. 16, 1994) directs Federal agencies to identify and address “disproportionately high and adverse human health or environmental effects” of their actions on minority populations and low-income populations to the greatest extent practicable and permitted by law. EPA defines environmental justice (EJ) as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.” EPA further defines the term fair treatment to mean that “no group of people should bear a disproportionate burden of environmental harms and risks, including those resulting from the negative environmental consequences of industrial, governmental, and commercial operations or programs and policies.”
The New Hampshire DES did not evaluate environmental justice considerations as part of its SIP submittal; the CAA and applicable implementing regulations neither prohibit nor require such an evaluation. EPA did not perform an EJ analysis and did not consider EJ in this action. Due to the nature of the action being taken here, this action is expected to have a neutral to positive impact on the air quality of the affected area. Consideration of EJ is not required as part of this action, and there is no information in the record inconsistent with the stated goal of E.O. 12898 of achieving environmental justice for people of color, low-income populations, and Indigenous peoples.
Environmental protection, Air pollution control, Incorporation by reference, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental Protection Agency (EPA).
Proposed rule.
The EPA is proposing amendments to the new source
Comments must be received on or before March 25, 2024. Under the Paperwork Reduction Act (PRA), comments on the information collection provisions are best assured of consideration if the Office of Management and Budget (OMB) receives a copy of your comments on or before February 22, 2024.
You may send comments, identified by Docket ID No. EPA-HQ-OAR-2017-0183, by any of the following methods:
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•
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For questions about this proposed action, contact Charlene E. Spells, Sector Policies and Programs Division (E143-05), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, P.O. Box 12055, North Carolina 27711; telephone number: (919) 541-5255; email address:
If a public hearing is requested, the EPA will begin pre-registering speakers for the hearing no later than 1 business day after a request has been received. To register to speak at the virtual hearing, please use the online registration form available at
The EPA will make every effort to follow the schedule as closely as possible on the day of the hearing; however, please plan for the hearings to run either ahead of schedule or behind schedule.
Each commenter will have 4 minutes to provide oral testimony. The EPA encourages commenters to provide the EPA with a copy of their oral testimony electronically (via email) by emailing it to
The EPA may ask clarifying questions during the oral presentations but will not respond to the presentations at that time. Written statements and supporting information submitted during the comment period will be considered with the same weight as oral testimony and supporting information presented at the public hearing.
Please note that any updates made to any aspect of the hearing will be posted online at
If you require the services of a translator or special accommodation such as audio description, please pre-register for the hearing with the public hearing team and describe your needs by January 30, 2024. The EPA may not be able to arrange accommodations without advanced notice.
The EPA may publish any comment received to its public docket. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (
The
Our preferred method to receive CBI is for it to be transmitted electronically using email attachments, File Transfer Protocol (FTP), or other online file sharing services (
Organization of this document. The information in this preamble is organized as follows:
The EPA is proposing to revise the standards of performance for new stationary sources (new source performance standards, or NSPS) and emission guidelines (EG) for existing sources for large municipal waste combustors (MWCs) by amending existing standards for the large MWC source category, which comprises incinerators that combust greater than 250 tons per day (tpd) of municipal solid waste (MSW). The EPA is exercising its authority under section 129 of the Clean Air Act (CAA). The proposed standards would increase stringency of existing regulation of emissions of the nine pollutants listed in CAA section 129: cadmium (Cd), mercury (Hg), lead (Pb), particulate matter (PM), hydrogen chloride (HCl), sulfur dioxide (SO
These proposed amendments reflect the results from a reevaluation of the maximum achievable control technology (MACT) floor, a 5-year review, and the removal of startup, shutdown and malfunction (SSM) exclusions and exceptions. These proposed amendments also streamline regulatory language, revise recordkeeping and electronic reporting requirements, re-establish new and existing source applicability dates, clarify requirements for air curtain incinerators, close a 2007 proposed reconsideration action, correct certain typographical errors, make certain technical corrections, and clarify certain provisions in the NSPS and EG. Specifically, the major proposed amendments would do the following:
• Revise all emission limits in the EG, except for CO limits for two combustor subcategories, and all nine emission limits in the NSPS. With the exception of NO
• Remove the alternative percent reduction standards and NO
• Remove SSM exclusions and exceptions and significantly revise monitoring provisions during these periods. For NO
• Streamline regulatory language to be more accessible than the 1995 large MWC rule. Primarily, convert text describing emission standards and performance testing requirements from paragraphs into tables to facilitate easier implementation and understanding of the requirements.
• Revise recordkeeping and electronic reporting requirements for source owners and operators to submit electronic copies of required performance test reports, performance evaluation reports, semiannual compliance reports, and annual reports through the EPA's Central Data Exchange (CDX) using the Compliance and Emissions Data Reporting Interface (CEDRI). The electronic submittal of the reports addressed in this proposed rulemaking will increase the usefulness of the data contained in those reports and will improve availability and transparency.
• Re-establish new and existing source applicability so that large MWC units currently subject to the NSPS would become “existing” sources under the proposed amended standards and would be required to meet the revised EG by the applicable compliance date for the revised guidelines. Large MWC
• Clarify requirements for air curtain incinerators that burn only wood waste, clean lumber, and yard waste or a mixture of these materials. The EPA is proposing to eliminate the regulatory title V permitting requirement for air curtain incinerators that are not located at a major source or subject to title V for other reasons.
Table 1 of this preamble summarizes the monetized benefits, costs, and emissions reductions of this proposed action for new and existing large MWCs from 2025 through 2044. As indicated in Table 1, the EPA projects that the proposed amendments would result in an estimated 14,000 tons per year reduction in regulated pollutants. The EPA conducted an economic analysis for this proposal, as detailed in the document
This proposal applies to large MWCs that combust more than 250 tpd of MSW as defined under section129(a)(1)(B) of the 1990 CAA Amendments (
In addition to being available in the docket, an electronic copy of this action is available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this proposed action at
A memorandum showing the rule edits that would be necessary to incorporate the changes to 40 CFR part 60, subparts Cb and Eb
The statutory authority for this action is provided by section 129 of the CAA. CAA section 129 requires the EPA to establish NSPS and EG pursuant to CAA
In setting forth the methodology that the EPA must use to establish the first-stage technology-based standards, CAA section 129(a)(2) provides that standards “applicable to solid waste incineration units promulgated under . . . [section 111] and this section shall reflect the maximum degree of reduction in emissions of . . . [certain listed air pollutants] that the Administrator, taking into consideration the cost of achieving such emission reduction and any non-air quality health and environmental impacts and energy requirements, determines is achievable for new and existing units in each category.” This level of control is referred to as a maximum achievable control technology, or MACT standard. CAA section 129(a)(4) further directs the EPA to set numeric emission limits for certain enumerated pollutants (Cd, CO, PCDD/PCDF, HCl, Pb, Hg, NO
In promulgating a MACT standard, the EPA must first calculate the minimum stringency levels for new and existing solid waste incineration units in a category, based on levels of emissions control achieved in practice by the subject units. The minimum level of stringency is called the MACT floor. Different approaches exist for determining the floors for new and/or existing sources. For new, modified, and reconstructed sources, CAA section 129(a)(2) provides that the “degree of reduction in emissions that is deemed achievable . . . shall not be less stringent than the emissions control that is achieved in practice by the best controlled similar unit, as determined by the Administrator.” Emissions standards for existing units may be less stringent than standards for new units, but CAA section 129(a)(2) requires that the standards “shall not be less stringent than the average emissions limitation achieved by the best-performing 12 percent of units in the category.” The MACT floors form the least-stringent regulatory option the EPA may consider in the determination of MACT standards for a source category and therefore cost is not a factor for consideration. As a part of the “beyond-the-floor” evaluation, the EPA must evaluate standards more stringent than the floor, which includes the consideration of the factors outlined in CAA section 129(a)(2) including the costs, non-air quality health and environmental impacts, and energy requirements of more stringent controls.
MACT analyses involve assessing emissions from the best-performing units in a source category. The assessment can be based on actual emissions data, knowledge of existing air pollution control in combination with actual emissions data, or other information such as state regulatory requirements that enable the EPA to estimate the performance of the regulated units. For each source category, the assessment involves a review of actual emissions data with an appropriate accounting for emissions variability. Other methods of estimating emissions can be used, provided that the methods can be shown to provide reasonable estimates of the actual emissions performance of a source or sources. Where there is more than one method or technology to control emissions, the analysis may result in several potential regulations (regulatory options), one of which is selected as MACT for each pollutant. Each regulatory option must be at least as stringent as the minimum-stringency floor requirements. The EPA must also examine, but is not necessarily required to adopt, more stringent beyond-the-floor regulatory options to determine MACT. Unlike with floor minimum stringency requirements, the EPA must consider various impacts of the more stringent regulatory options in determining whether MACT standards are to reflect beyond-the-floor requirements. If the EPA concludes that the more stringent regulatory options have unreasonable impacts, the EPA selects the floor-based regulatory option as MACT. If the EPA concludes that impacts associated with beyond-the-floor levels of control are acceptable given the emissions reductions achieved, the EPA selects those levels as MACT.
Under CAA section 129(a)(2), for new sources, the EPA determines the best control currently in use for a given pollutant and establishes one potential regulatory option at the emission level achieved by that control, accounting for emissions variability. More stringent potential beyond-the-floor regulatory options might reflect controls used on other sources that could be applied to the source category in question. For existing sources, the EPA determines the average emissions limitation achieved by the best-performing 12 percent of units to form the floor regulatory option. Beyond-the-floor options reflect other controls capable of achieving better performance.
As noted earlier in this preamble, CAA section 129(a)(5) requires the EPA to conduct a review of the standards at 5-year intervals and, in accordance with CAA sections 129 and 111, if appropriate, revise the standards. In conducting the 5-year review, the EPA assesses the performance of and variability associated with control measures affecting emissions performance at sources in the subject source category (including the installed emissions control equipment), along with recent developments in practices, processes, and control technologies, and determines whether it is appropriate to revise the NSPS and EG. This approach is consistent with the requirement that standards under CAA section 129(a)(3) “shall be based on methods and technologies for removal or destruction of pollutants before, during or after combustion.” We do not interpret CAA section 129(a)(5), together with CAA section 111, as requiring the EPA to recalculate MACT floors in connection with this 5-year review.
In December 1995, the EPA adopted EG (40 CFR part 60, subpart Cb) and NSPS (40 CFR part 60, subpart Eb)
The CAA requires review of these standards at 5-year intervals and, in 2006, amendments to the 1995 standards were promulgated. In the 2006 final rule, titled “Standards of Performance for New Stationary Sources and Emission Guidelines for Existing Sources: Large Municipal Waste Combustors” (71 FR 27324, May 10, 2006), revisions to the emission limits and compliance testing provisions were made to reflect the actual performance achieved by existing MWCs and to reflect improvements in CEMS data performance and reliability.
Following promulgation of the 2006 rulemaking, environmental groups filed a petition for review in the D.C. Circuit challenging the rulemaking. The petitioners challenged the MACT floor limits which the EPA promulgated in 1995. In light of then-recent precedents casting doubt on the soundness of MACT floors derived in part from state-issued air permits,
The majority of the data for addressing the MACT remand come from source inventory information from the original 1995 rulemaking docket and compliance test information compiled primarily from 2000 to 2009. This data set builds upon initial compliance data and inventory information collected in 2000. Starting with initial 2000 compliance data,
In addition to the compliance data compiled in 2009, data gaps for newer large MWC facilities were filled by downloading publicly available permit applications, permits, and test reports from State environmental data website portals to establish baseline emission estimates and air pollution controls currently in place for each unit. The EPA also conducted a site visit to the most recently constructed large MWC facility in the United States, where the only domestic MWC units with selective catalytic reduction (SCR) technology to control NO
Finally, information and analyses from a separate rulemaking, the Good Neighbor Plan,
In conducting 5-year reviews under CAA section 129(a)(5), the EPA assesses the performance of, and variability associated with, control measures affecting emissions performance at sources in the subject source category (including the installed emissions control equipment), along with developments in practices, processes, and control technologies. For development of this proposed rule, the EPA reviewed available performance data for large MWC units. In reviewing the standards based on currently available emissions information, we
• Any add-on control technology or other equipment that was not identified and considered during development of the original MACT standards or previous 5-year reviews.
• Any improvements in add-on control technology or other equipment that were considered during development of the original MACT standards or previous 5-year reviews and could result in additional emissions reduction.
• Any significant changes in the cost (including cost-effectiveness) of applying controls (including controls the EPA considered during the development of the original MACT standards or during previous 5-year reviews).
There has been significant public interest in large MWC facilities due to concerns regarding impacts of emissions from these sources. In developing this proposed rule, the EPA conducted pre-proposal outreach activities with communities with environmental justice (EJ) concerns, as well as states and tribes. On December 6, 2022, a pre-proposal roundtable was conducted with communities to present background information on the industry and plans for the rulemaking, and to address questions. The EPA emailed information to roundtable stakeholders explaining how to comment on the non-regulatory docket established to solicit public input on the Agency's efforts to review and revise the large MWC emission standards. This information was sent to tribal nations, small businesses, and communities with EJ concerns via existing listservs on March 13, 2023.
In this action, the EPA is reevaluating the initial MACT standards established in 1995 for large MWCs pursuant to our 2008 request to the D.C. Circuit for a voluntary remand and conducting the 5-year review of large MWC under CAA section 129(a)(5). As part of this process, we considered four scenarios for setting new EG and NSPS emission limits based on the EPA's obligations to reevaluate MACT standards established in 1995 and to conduct the 5-year review under CAA section 129(a)(5). As part of EPA's MACT floors reevaluation, the Agency first must consider best performing units to establish MACT floors limits, and then further consider whether additional beyond-the-floor controls are appropriate. As part of the 5-year review, the EPA must further consider whether additional controls are appropriate given improvements in pollution controls. Accordingly, the EPA undertook the following analyses to identify potential regulatory approaches: (1) determined the MACT floor limits for all pollutants, (2) determined the beyond-the-floor based limits for all pollutants, (3) considered a combination of both MACT floor limits and 5-year review limits depending on the pollutant, and (4) further considered a combination of beyond-the-floor and 5-year review limits depending on the pollutant. Methodologies and rationale used to determine these limits are discussed in further detail in sections III.A.2 and 3 below. For reasons discussed later in this section of the preamble, the EPA is proposing the third scenario, which includes MACT floor limits for all pollutants except for NO
To correct our initial analysis of MACT floors undertaken in 1995, the EPA proposes to recalculate the large MWC MACT floors to account for the development of caselaw calling into question the establishment of these standards based on state-issued permit levels where there is no evidence that the permit levels reflect the performance of the best performing sources. As discussed above, following a series of D.C. Circuit cases which called into question the use of state permitting data for establishing MACT floors,
We are accordingly proposing to base our calculation of the MACT floors on additional emissions data from sources in the large MWC source category. In recalculating the MACT floors to correct for errors in our initial analysis, however, EPA is assessing the state of the industry at the time limits were first calculated for large MWCs in 1995. Given the specifics of the history of the regulation of this source category, the EPA views this as an appropriate approach to establish MACT floors that reflect the emission levels actually achieved by the best-performing sources using the maximum achievable control technology before sources in the category first complied with the 1995 standards. The EPA proposes utilizing 1995 performance levels to re-establish MACT floor requirements appropriately balances competing interest in this rulemaking, by recognizing on one hand that LMWC facilities have taken steps to reduce emissions since the EPA first promulgated 1995 standards, and on the other hand the EPA's obligation to ensure MACT floor standards are set correctly for each source category regulated under CAA section 129. To do this, however, the EPA finds it is necessary to utilize a different dataset to recalculate new MACT floors than the
In a related context, for hospital, medical, and infectious waste incinerators (HMIWI) regulated under CAA section 129, the EPA addressed a remand from the D.C. Circuit to provide further explanation of the EPA's reasoning in determining MACT floors for new and existing HMIWI.
Similar to the D.C. Circuit's finding in
In calculating MACT floors, for existing sources, the CAA requires that MACT limits be no less stringent than the average emissions limitation achieved by the best-performing 12 percent of units in a source category. The EPA must determine some measure of the average emissions limitation achieved by the best-performing 12 percent of units to form the floor regulatory option. For new sources, the CAA requires that MACT limits be no less stringent than the emissions control achieved in practice by the best-controlled similar unit.
Our first step in calculating the MACT floor limits based on the EPA's proposed rationale was to identify the population of units operating at the time of the original emission guidelines development (1990), then use corresponding compliance data reported from 2000 through 2009
Adjusted data were ranked, and top performing units were identified for each pollutant and any applicable subcategories. Then, corresponding emissions data were compiled and analyzed to determine the average performance of those units, with an appropriate accounting for emissions variability, to establish MACT floor emission limits. Separate methodologies were used for pollutants having stack test data (Cd, Pb, Hg, PM, HCl, and PCDD/PCDF) and pollutants having CEMS data (CO, NO
For each stack test pollutant, a statistical analysis was performed on annual averages of screened run data from the 2000 to 2009 dataset to determine an upper prediction limit (UPL). For EG limits, average annual run data corresponding to the top 12 percent of units were used, and for NSPS limits, average annual run data for the single top performer was used.
UPL results and the derived EG and NSPS MACT floor limits are presented in Table 4 of this preamble. Additional discussion of the methodology, detailed results, and a copy of the UPL template can be found in the docket.
Unlike stack test pollutants, there are no individual run data for CEMS pollutants. Instead, data for CO, NO
As with the UPL results for stack test pollutants, resulting averages for CEMS pollutants were rounded up to two significant figures. In cases where results were greater (less stringent) than the current large MWC EG limit, the current limit was retained as the MACT floor limit.
Averages and subsequent MACT floor EG and NSPS limits are summarized in Tables 5 and 6 of this preamble, respectively. Additional discussion of the methodology, detailed results, and a copy of the UPL template can be found in the docket.
For assessing beyond-the-floor options at the time of the original rulemaking (
To assess additional control options currently in use in completion of the 5-year review pursuant to CAA section 129(a)(5), the EPA assessed the performance of, and variability associated with, control measures affecting emissions performance at large MWC sources (including the installed emissions control equipment), and recent developments in practices, processes, and control technologies. As evidenced by the recently finalized Good Neighbor Plan rulemaking,
The estimated cost impacts and emissions reductions of the MACT floor, beyond-the-floor,
Selection of the MACT floor/5-year review scenario further recognizes that most sources have already been retrofitted with APCD that were considered to be state of the art for MWCs in the 1990s (
As a result of the 5-year review, the EPA is proposing the 110 parts per million (ppm) (24-hour) NO
Unlike the Good Neighbor Plan, the EPA is not proposing a mechanism for existing large MWCs to request a case-by-case emission limit based on a demonstration that application of ASNCR and Covanta's LN
For new units, the EPA is proposing a NO
Aside from NO
In this proposal, large MWC units would be treated differently under the amended standards as proposed than they were under the 1995 large MWC rule in terms of whether they are “existing” or “new” sources. Consistent with CAA section 129, new dates would define which units are considered new sources. Large MWC units that are currently subject to the NSPS would become existing sources under the proposed amended standards and would be required to meet the revised EG standards by the applicable compliance date for the revised guidelines. However, those units would continue to be NSPS units subject to the 1995 large MWC rule until they become subject to the amended existing source standards. Large MWC units that commence construction after the date of this proposal, or for which a modification is commenced on or after the date 6 months after promulgation of the amended standards, would be new units subject to the NSPS emission limits. Units for which construction or modification is commenced prior to those dates would be existing units subject to the proposed EG. That is, under these proposed amendments, any large MWC units that commenced construction on or before January 23, 2024, or that are reconstructed or modified prior to the date 6 months after promulgation of any revised final standards, would be subject to the 1995 large MWC NSPS/1991 NSPS (Ea, as appropriate) until the applicable compliance date for the revised EG, at which time those units would become existing sources. Similarly, large MWC units subject to the EG under the 1995 large MWC rule would need to meet the revised EG by the applicable compliance date for the revised guidelines. Large MWC units that commence construction after January 23, 2024 or that are reconstructed or modified 6 months or more after the date of promulgation of any revised standards would have to meet the revised NSPS emission limits being added to 40 CFR part 60, subpart Eb within 6 months after the promulgation date of the amendments or upon startup, whichever is later.
Due to the timing of the original promulgation of NSPS for this source category and the 1990 CAA Amendments, there is a second NSPS applicable to large MWCs for which some standards are still referenced in title V operating permits. Subpart Ea standards apply to units for which construction commenced after December 20, 1989, and on or before September 20, 1994. Due to the proposed resetting of the “new” and “existing” definitions described above, any units that meet subpart Ea applicability would become existing units subject to 40 CFR part 60, subpart Cb once implemented through a state or Federal plan. As such, subpart Ea would no longer be necessary. We propose to “reserve” 40 CFR part 60, subpart Ea NSPS standards once the revised EG emission limits are implemented (
In addition to the proposed emission limits discussed in section III.A of this preamble, we also propose to remove all alternative percent reduction standards that were allowed in the original rulemaking. Specifically, we are proposing to remove the 85 percent reduction allowed for Hg (NSPS and EG), the 95 percent allowed for HCl (NSPS and EG), and the 80 percent (NSPS) and 75 percent (EG) allowed for SO
For similar reasons, we also propose to remove the NO
In addition to the proposed actions described above, we are proposing additional revisions to the NSPS and EG. We are proposing revisions to the SSM provisions of the NSPS and EG in order to ensure that they are consistent with the decision in
We are not proposing a separate emission standard for large MWC units that applies during periods of startup and shutdown. We determined that large MWC units will be able to meet the emission limits during periods of warmup and startup because most units use natural gas or clean distillate oil to warm up the unit and do not add waste until the unit has reached combustion temperatures during a brief startup period. Emissions from burning natural gas or distillate fuel oil would generally be significantly lower than from burning solid wastes for most pollutants, specifically those where compliance is measured using stack tests (
Emissions during periods of shutdown are also generally significantly lower than emissions during normal operations because the materials in the incinerator are almost fully combusted before shutdown occurs. Furthermore, the approach for establishing MACT floors for large MWC units ranked individual MWC units based on actual performance for each pollutant and subcategory, with an appropriate accounting of emissions variability. Because we accounted for emissions variability and established appropriate averaging times to determine compliance with the standards, we believe we have adequately addressed any minor variability that may potentially occur during startup or shutdown. We request comment on the proposed removal of the exemption for startup and shutdown periods and the rationale for applying the proposed emission standards at all times.
For NO
Secondly, CEMS data collected while the large MWC unit is warming up (no waste is introduced to the grate), starting up (warmup period is over and waste is first fed to the grate but not at steady state operation) and shutting down (waste is no longer being fed but is burning down on grate) will be flagged as warmup, startup, or shutdown period data. CEMS data collected during warmup, startup, or shutdown periods will be averaged at stack oxygen content and not corrected to 7 percent oxygen, as are data during normal operations. This is consistent with the regulatory approach used for a subcategory of units in the CISWI (see 80 FR 3018, January 21, 2015) that are similar in type to large MWCs, where: “[P]etitioners indicated that correcting CO concentration measurements to 7 percent oxygen is problematic during startup and shutdown periods when the flue gas oxygen content approaches the oxygen content of ambient air, especially with regard to the energy recovery unit (ERU) subcategory. Oxygen contents relatively close to ambient air are often maintained during combustion unit startup and shutdown in order to safely operate the unit, but, as a result, the corrected CO values during these periods are artificially inflated due to the oxygen correction
Periods of startup, normal operations, and shutdown are all predictable and routine aspects of a source's operations. Malfunctions, in contrast, are neither predictable nor routine. Instead, they are, by definition, sudden, infrequent, and not reasonably preventable failures of emissions control, process, or monitoring equipment. (40 CFR 60.2) (Definition of malfunction). The EPA interprets CAA section 129 as not requiring emissions that occur during periods of malfunction to be factored into development of CAA section 129 standards. This reading has been upheld as reasonable by the D.C. Circuit in
The 2006 final amendments to the large MWC rules revised the PM and Hg compliance testing requirements to allow the optional use of a PM CEMS or Hg CEMS in place of stack testing, and would allow the optional use of multi-metal, HCl, PCDD/PCDF CEMS in place of stack tests after performance specifications for these CEMS are promulgated (see 71 FR 27326, May 10, 2006). These amendments also allowed for continuous automated sorbent monitoring for Hg and PCDD/PCDF. Since this time, other performance specifications have been promulgated and the EPA is proposing to incorporate them into these large MWC requirements. However, another consideration is to reinvestigate whether the use of CEMS for compliance testing requires the EPA to adopt alternative emission limits. In the 2006 final rule, we made the following statements (see 71 FR 27330, May 10, 2006):
The move from once per year stack testing (where emission limits were calculated from the 99 percentile) to CEMS (99.7 percentile) suggests the emission limit should be increased if the same data averaging period is used. To address this, the final rule increases the data averaging period from 8 hours (typical particulate matter and mercury stack test period) to a 24-hr daily average if particulate matter or mercury CEMS are used. Past analysis of sulfur dioxide CEMS and nitrogen oxides CEMS data (and utility particulate matter CEMS data) indicate increasing the averaging period to a 24-hr daily average will reduce emissions variability and associated peak emissions estimates. EPA supports the optional use of particulate matter and mercury CEMS but is fully aware that no particulate matter CEMS or mercury CEMS data from MWC units are available from domestic MWC units. EPA encourages MWC owners or operators who elect to apply particulate matter or mercury CEMS, to notify EPA as soon as data are collected to allow a determination if alternative emission limits are appropriate.
Note that, if owners and operators decide to use PM or Hg CEMS for compliance demonstration purposes, these data must be submitted to EPA.
As noted in this section, more recent combustion rulemakings have been promulgated with 30-day hourly rolling averages for pollutants measured with Hg CEMS (
The EPA is proposing changes to the regulatory format of the large MWC standards to be more accessible and easier to follow than the 1995 large MWC rule. Paragraph text describing emission standards and performance testing requirements would be converted to tables to facilitate easier implementation and understanding of the requirements, especially as staged compliance dates are introduced with the proposed standards. These streamlining efforts do not change the regulatory numbering of the 1995 rule but do add new tables to the end of the subparts for these requirements, similar to other more recently developed CAA section 129 standards. A memorandum showing the rule edits that would be necessary to incorporate the changes to 40 CFR part 60, subparts Cb and Eb proposed in this action is available in the docket (Docket ID No. EPA-HQ-OAR-2017-0183).
In this proposal, we are completing action on the March 20, 2007, notice of reconsideration that was never finalized. In that notice, we announced our reconsideration of three out of four aspects of the rule that were requested for reconsideration: operator stand-in provisions, data requirements for continuous monitors, and the status of operating parameters during the two weeks prior to Hg and PCDD/PCDF testing (see 72 FR 13016). As a brief summary:
• Operator Stand-In Provisions—A petitioner was concerned that the EPA was, in its operator stand-in provisions, “allow(ing) untrained employees to perform the duties of a certified chief facility operator or certified shift operator.” The EPA discussed the various certification and training requirements of the standards and concluded that the “. . . limited exemption did not undermine the MWC regulation, did not allow untrained individuals to operate the MWC, and would, in fact, improve the efficiency of the regulation by reducing unnecessary reporting and paperwork requirements” (see 72 FR 13019).
• Data Requirements for Continuous Monitors—Petitioners were concerned about the EPA's elimination of a
• Status of Operating Parameters During the Two Weeks Prior to Hg and PCDD/PCDF Testing—A petitioner claimed that the EPA “now allows MWC to avoid meeting mass carbon feed rate limits for PCDD/PCDF testing, as well as Hg testing, and increases to more than four weeks per year the total amount of time that MWC can avoid meeting mass carbon feed rate limits.” The EPA discussed the need for optimization testing and demonstrated how, out of economic and practical concerns, these are done in short, often the same, test periods so that concerns over four weeks of carbon feed rate parameters being waived are not warranted. As a result, the EPA stated that the provision for optimization testing for ACI is appropriate and the EPA is not proposing to change it (see 72 FR 13019).
Of the three issues that we granted reconsideration on and discussed in the 2007 proposal notice, only a single comment expressing support for our proposed reconsideration approach was received. Therefore, in absence of adverse comment, we are proposing to finalize our reconsideration as previously proposed.
In this proposal, we are updating the citation to and incorporating by reference the American Society of Mechanical Engineers (ASME) Standard for the Qualification and Certification of Resource Recovery Facility Operators (QRO). In the 1995 large MWC rule, the cited QRO was the 1994 version, QRO-1-1994. Since that time, ASME has released a 2005 version as the most recent one available. This QRO is identified as QRO-1-2005 and will be incorporated by reference and updated within the text of 40 CFR 60.17(g) and 60.54b.
CAA section 129(e) generally requires title V permits
As background, in previous rulemaking for the Other Solid Waste Incinerators EG and NSPS (40 CFR part 60 subparts EEEE and FFFF), we provided for title V permitting for these air curtain incinerators for various reasons, as explained in 70 FR 74884-74885 (December 16, 2005). In particular, we believed initially that compliance with a title V permit was necessary to assure compliance with the opacity requirements established for such incinerators. Since then, the EPA has received feedback from several states indicating that the title V requirements are unnecessarily burdensome and expensive for states to maintain for these air curtain incinerators. Based on available data, air curtain incinerators that burn exclusively wood waste, clean lumber, and yard waste are commonly located at facilities that would not otherwise require a title V operating permit (such as land clearing operations in public or private land) and, to EPA's knowledge, no large MWC facility also operates an air curtain incinerator on premises.
The EPA is proposing that owners and operators of large MWC units submit electronic copies of required performance test reports, performance evaluation reports, semiannual compliance reports, annual reports, and certain notifications through the EPA's Central Data Exchange (CDX) using the Compliance and Emissions Data Reporting Interface (CEDRI). A description of the electronic data submission process is provided in the memorandum Electronic Reporting Requirements for New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAP) Rules, available in the docket for this action. The proposed rule requires that performance test results collected using test methods that are supported by the EPA's Electronic Reporting Tool (ERT) as listed on the ERT website
For semiannual and annual reports, the proposed rule requires that owners and operators use the appropriate spreadsheet template to submit information to CEDRI. A draft version of the proposed template for these reports is included in the docket for this action.
Additionally, the EPA has identified two broad circumstances in which electronic reporting extensions may be provided. These circumstances are (1) outages of the EPA's CDX or CEDRI which preclude an owner or operator from accessing the system and submitting required reports and (2) force majeure events, which are defined as events that will be or have been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility that prevent an owner or operator from complying with the requirement to submit a report electronically. Examples of force majeure events are acts of nature, acts of war or terrorism, or equipment failure or safety hazards beyond the control of the facility. The EPA is providing these potential extensions to protect owners and operators from noncompliance in cases where they cannot successfully submit a report by the reporting deadline for reasons outside of their control. In both circumstances, the decision to accept the request for additional time to report is within the discretion of the Administrator, and reporting should occur as soon as possible.
The electronic submittal of the reports addressed in this proposed rulemaking will increase the usefulness of the data contained in those reports, is in keeping with current trends in data availability and transparency, will further assist in the protection of public health and the environment, will improve compliance by facilitating the ability of regulated facilities to demonstrate compliance with requirements and by facilitating the ability of delegated state, local, tribal, and territorial air agencies and the EPA to assess and determine compliance, and will ultimately reduce burden on regulated facilities, delegated air agencies, and the EPA. Electronic reporting also eliminates paper-based, manual processes, thereby saving time and resources, simplifying data entry, eliminating redundancies, minimizing data reporting errors, and providing data quickly and accurately to the affected facilities, air agencies, the EPA, and the public. Moreover, electronic reporting is consistent with the EPA's plan
The EPA is proposing corrections and clarifications to the NSPS and EG that were identified during implementation of the previous regulations. These amendments are being made to improve the clarity of the NSPS and EG, and to make technical corrections that have been brought to the EPA's attention since the December 19, 1995, promulgation. These corrections and clarifications will improve the implementation of the regulations by large MWC owners and operators, and state and Federal air pollution control agencies.
Following is a list of the most significant revisions. Non-substantive typographical corrections are also proposed but are not listed here.
• Adding 40 CFR 60.32b(o) and 60.50b(q) to clarify that large MWC units subject to 40 CFR part 60, subpart Cb are not subject to 40 CFR part 60, subpart Db. This makes the NSPS and EG consistent with 40 CFR part 60, subpart Db, which exempts large MWC units from that subpart.
• Revising 40 CFR 60.30b(b) to clarify that approval of certain exemption claims in 40 CFR 60.32b(b)(1), (d), (e), (f)(1), and (i)(1); approval of a NO
• Revising 40 CFR 60.50b(n)(2) to clarify that the EPA Administrator retains sole authority to issue the federally enforceable 11 tpd limit for exemptions in 40 CFR 60.50b(b) and the 30 percent municipal waste limit for co-fired units in 40 CFR 60.50b(j)(2).
• Revising 40 CFR 60.50b(n)(4) to correct a typographical error and clarify that the EPA Administrator retains sole authority to review and approve demonstrations that establish the relationship between carbon dioxide (not CO) and oxygen as part of initial and annual performance tests.
• Amending the definition of “federally enforceable” in 40 CFR 60.51b to correct a cross referencing error and reference 40 CFR 51.165 and 51.166 instead of 40 CFR 51.18 and 51.24.
• Revising 40 CFR 60.58b(f)(7) and 60.58b(k)(4) to correct an oversight and clarify that the revised testing schedule (once per calendar year, but no less than 9 months and no more than 15 months following the previous test) also applies to fugitive ash and HCl testing.
• Revising 40 CFR 60.39b(b) and (g) to clarify that state plans were due on May 10, 2007, not April 28, 2007.
• Adding 40 CFR 60.59b(d)(2)(iii) to clarify that all data for continuous monitoring systems must be recorded using “local time” for the location where the affected facility is located unless an alternative time system is approved by the Administrator.
• Revising 40 CFR 60.59b(g)(1) to require that owners and operators must additionally report the annual arithmetic average of all hourly values recorded during operations for the reporting year.
Under the proposed amendments to the EG and consistent with CAA section 129, revised state plans containing the revised existing source emission limits and other requirements in the proposed amendments would be due within 1 year after promulgation of the amendments. That is, states would have to submit revised plans to the EPA 1 year after the date on which the EPA promulgates revised standards.
The proposed amendments to the EG would then allow existing large MWC units to demonstrate compliance with the amended standards as expeditiously as practicable after approval of a state plan, but no later than three years from the date of approval of a state plan or five years after promulgation of the revised standards, whichever is earlier. Consistent with CAA section 129, the EPA expects states to require compliance as expeditiously as practicable. However, because we anticipate that many large MWC units will find it necessary to retrofit existing emission control equipment and/or install additional emission control equipment to meet the proposed revised limits, the EPA anticipates that states may choose to provide the 3-year compliance period allowed by CAA section 129(f)(2).
In revising the standards in a state plan, a state would have two options. First, it could include both the 2006 large MWC standards and the new standards in its revised state plan, which would allow a phased approach in applying the new limits. That is, the state plan would make it clear that the standards in the 2006 large MWC rule remain in force for large MWC units and apply until the date the revised existing source standards are effective (as defined in the state plan).
The EPA will revise the existing Federal plan to incorporate any changes to existing source emission limits and other requirements that the EPA ultimately promulgates. The Federal plan applies to large MWC units in any state without an approved state plan. The proposed amendments to the EG would allow existing large MWC units subject to the Federal plan up to five years after promulgation of the revised standards to demonstrate compliance with the amended standards, as required by CAA section 129(b)(3).
The large MWC source category comprises units with a capacity greater than 250 tpd of MSW. The current population of large MWC units is estimated to include 152 units at 57 facilities nationwide. Of these, 129 (85 percent) are mass burn units, and the remaining are refuse-derived fuel systems. Approximately 30 percent of currently operating large MWCs are subject to 40 CFR part 60, subpart Eb (2006 NSPS limits), with the remaining subject to 40 CFR part 60, subparts Ea (NSPS limits for units constructed after December 20, 1989, and on or before September 20, 1994) or Cb (EG for units constructed before September 20, 1994). We estimate that there are 22 municipally owned or operated facilities with a total of 62 municipally owned or operated large MWC units.
We have estimated the potential emissions reductions from existing sources that may be realized through implementation of the emission limits under consideration. Emissions reductions were estimated for all units where add-on controls, improvements to existing control devices, or increased carbon or lime injection rates would likely be required to meet a given limit.
Indirect or secondary air emissions can result from the increased energy requirements associated with the operation of new control devices (
We expect that existing units still operating electrostatic precipitators for particulate control will retrofit with a fabric filter control device, but the difference in energy needs for each of these devices is expected to be minimal. Furthermore, any improvements made to existing fabric filters will not be significant enough to require a larger fan, meaning that electricity consumption would remain unchanged. For NO
We anticipate affected sources will need to apply additional controls to meet the proposed emission limits. These control measures impact waste disposal, water usage, and electricity requirements.
PM controls or control improvements will increase the amount of particulate collected that will require disposal. Increased ACI rates for Hg and PCDD/PCDF control, as well as increased lime injection for acid gas control, will also require additional waste disposal. The total amount of solid waste that would require disposal as a result of control measures implemented to meet the proposed limits is anticipated to be approximately 66,800 tpy. This includes 16.7 tpy from PM capture, 15,000 tpy from carbon injection, and 51,800 tpy from lime injection.
Advanced SNCR for NO
The energy impacts associated with meeting the proposed emission limits would consist primarily of additional electricity needs to run added or improved controls. However, large MWCs are already generating their own electricity, and the power demand for added or improved controls would be met at the cost of electricity sales to customers. The installation of fabric filters would require some unit downtime, which would result in a decrease in a facility's electricity production. We estimate an electricity loss of approximately 35,300 megawatt-hours for PM control.
Although we anticipate minimal growth in this source category, we recognize the possibility that some new units may be installed in the future. However, we expect any new units to be similar to the most recently constructed large MWC, which can already meet the limits considered for each option. Therefore, no additional controls or associated secondary impacts are anticipated for new sources as a result of the proposed limits.
Further details regarding water, solid waste, and energy impacts for new and existing sources are provided in the large MWC secondary impacts memorandum.
We have estimated compliance costs for all existing units to add the necessary controls to meet the proposed standards.
The EPA conducted an economic impact analysis for the proposed rule in the Regulatory Impact Analysis (RIA), which is available in the docket for this action. If the compliance costs, which are key inputs to an economic impact analysis, are small relative to the receipts of the affected companies, then the impact analysis may consist of a calculation of annual (or annualized) costs as a percent of sales for affected parent companies. This type of analysis is often applied when a partial equilibrium or more complex economic impact analysis approach is deemed unnecessary given the expected size of the impacts. The annualized cost per sales for a company represents the maximum price increase in the affected product or service needed for the company to completely recover the annualized costs imposed by the regulation, assuming no change in affected output. We conducted a cost-to-sales analysis to estimate the economic impacts of this proposal, given that the equivalent annualized value (EAV) of the compliance costs over the period of 2025 to 2044 are $120 million using a 7 percent or $110 million using a 3 percent discount rate in 2022 dollars, which is small relative to the revenues of the affected industry.
The EPA estimated the annualized compliance cost each firm is expected to incur and determined the estimated cost-to-sales ratio for affected units. This cost averages 0.15 percent of parent company revenue and does not exceed 3.5 percent of parent company revenue for any affected unit. The estimated cost-to-sales ratio for affected entities, none of which are small according to Small Business Administration size standards, averages 1.1 percent and does not exceed 4.4 percent.
Pursuant to E.O. 12866 as amended by E.O. 14094, the RIA for this action analyzes the benefits associated with the projected emissions reductions under this proposal to inform the EPA and the public about these projected impacts.
This proposed rule is projected to reduce emissions of Hg and non-Hg metal hazardous air pollutant (HAP), PM
The projected reductions in Hg are expected to reduce the bioconcentration of methylmercury in fish. Subsistence fishing is associated with vulnerable populations, including minorities and those of low socioeconomic status.
The potential benefits from reducing Hg and non-Hg metal HAP were not monetized and are therefore not reflected in the benefit-cost estimates associated with this proposal due to methodology and data limitations. Instead, we provide a qualitative discussion of the health effects associated with HAP emitted from sources subject to control under the proposed action. The EPA remains committed to supporting research to address these limitations. Potential benefits from reductions of PCDD/PCDF and reduction in nitrogen and sulfur deposition were also not monetized in this analysis and are therefore not directly reflected in the quantified benefit-cost comparisons. We anticipate that taking these non-monetized effects into account would show the proposal to have a greater net benefit.
The proposed control measures to reduce HAP and PM
The proposed control measures are also estimated to reduce PM
The locations of the new, modified, and reconstructed sources that will become subject to the proposed large MWC NSPS (40 CFR part 60, subpart Eb) are not known. Therefore, to examine the potential for any EJ issues that might be associated with the proposed NSPS, we performed a proximity demographic analysis for all 57 existing large MWC facilities that are currently subject to 40 CFR part 60, subparts Cb, Ea and Eb. These characterize populations near existing facilities that might modify or reconstruct in the future and become subject to the proposed NSPS requirements. This proximity demographic analysis characterized the individual demographic groups of the populations living within 5 kilometers (approximately 3.1 miles) and within 50 kilometers (approximately 31 miles) of the existing facilities. The EPA then compared the data from this analysis to the national average for each of the demographic groups.
The results of the proximity demographic analysis are shown in Table 9 of this preamble. The percent of the population living within 5 kilometers of the existing large MWC facilities in the following racial/ethnicity demographics are above the national average: African American (20 percent versus 12 percent nationally), Hispanic/Latino (23 percent versus 19 percent nationally), and other/multiracial (9 percent versus 8 percent nationally). In addition, the percent of population living within 5 kilometers of the existing large MWC facilities is above the national average for the following demographics: people living below the poverty level (16 percent versus 13 percent nationally), people over 25 without a high school diploma (15 percent versus 12 percent nationally), and those experiencing linguistic isolation (8 percent versus 5 percent nationally).
The percent of the population living within 50 kilometers of the existing large MWC facilities in the following racial/ethnicity demographics are above the national average: African American (14 percent versus 12 percent nationally), Hispanic/Latino (21 percent versus 19 percent nationally), and other/multiracial (11 percent versus 8 percent nationally). In addition, the percent of population living within 50 kilometers of the large MWC existing facilities is above the national average for linguistic isolation (8 percent versus 5 percent nationally).
The proposed large MWC NSPS and EG (40 CFR part 60, subparts Cb and Eb) cover new and existing solid waste incineration units “with capacity greater than 250 tons per day combusting municipal waste.” The proposed standards would increase stringency of existing regulation of emissions of the nine pollutants listed in CAA section 129: Cd, Hg, Pb, PM, HCl, SO
The methodology and the results (including facility-specific results) of the demographic analysis are presented in the document titled
We solicit comments on this proposed action. In addition to general comments on this proposed action, we are also interested in additional data that may improve the analyses, including data on the number of facilities that will require retrofit and data to inform EPA's projections of APCD use by large MWCs. We are specifically interested in receiving any information regarding developments in practices, processes, and control technologies that reduce pollutant emissions.
Additional information about these statutes and Executive Orders can be found at
This action is a “significant regulatory action” as defined under section 3(f)(1) of Executive Order 12866, as amended by Executive Order 14094. Accordingly, the EPA submitted this action to the OMB for Executive Order 12866 review. Documentation of any changes made in response to the Executive Order 12866 review is available in the docket. The EPA prepared an analysis of the potential costs and benefits associated with this action. This analysis, “
Table 10 of this preamble presents the estimated PV and EAV of the projected health benefits, compliance costs, and net benefits of the proposed rule in 2022 dollars discounted to 2023. The estimated monetized net benefits are the projected monetized benefits minus the projected monetized costs of the proposed rule.
In assessing the potential costs and benefits of its actions, EPA includes all potential costs and benefits, and not just those that stem from the regulated pollutants. Moreover, as explained in detail in the RIA, it is not possible to monetize the vast majority of the public health benefits associated with reductions of HAP. Accordingly, the projected monetized health benefits include those related to public health associated with projected reductions in fine PM (PM
These results present an incomplete overview of the potential effects of the proposal because important categories of benefits—including benefits from reducing Hg and non-Hg metal HAP and the benefits from increased transparency of emissions—were not monetized and are therefore not reflected in the benefit-cost tables. We anticipate that taking non-monetized effects into account would show the proposal to have a greater net benefit than this table reflects.
As shown in Table 10 of this preamble, at a 3 percent discount rate, this proposed rule is projected to reduce PM
At a 7 percent discount rate, this proposed rule is expected to generate projected PV of monetized health benefits of $3.1 billion and $9.8 billion, with an EAV of about $290 million and
The potential benefits from reducing Hg and non-Hg metal HAP were not monetized and are therefore not reflected in the benefit-cost estimates associated with this proposal. Potential benefits from PCDD/PCDF emission reductions and reduced nitrogen and sulfur deposition are not monetized in this analysis and are therefore not directly reflected in the quantified benefit-cost comparisons. We anticipate that taking these non-monetized effects into account would show the proposal to have a greater net benefit.
The information collection activities in this proposed rule have been submitted for approval to the OMB under the PRA. The Information Collection Request (ICR) documents that the EPA prepared has been assigned EPA ICR number 1847.10 for subpart Cb (OMB Control number 2060-0390) and 1506.15 for subparts Ea and Eb (OMB Control number 2060-0210). You can find a copy of the ICR for each subpart in the docket for this rule, and they are briefly summarized here.
These regulations apply to facilities that own and operate MWC units with a combustion capacity greater than 250 tpd of MSW that were constructed on or before September 20, 1994 (subject to 40 CFR 60, subpart Cb), facilities for which construction is commenced after December 20, 1989 and on or before September 20, 1994 (subject to 40 CFR 60, subpart Ea), or for which construction is commenced after September 20, 1994 or for which modification or reconstruction is commenced after June 19, 1996 (subject to 40 CFR 60, subpart Eb). The reporting and recordkeeping requirements discussed below result from the EG that apply to large MWCs covered by the EPA-approved and effective state plans and, where a state plan has not been approved, large MWCs covered by the Federal plan, and large MWCs subject to the NSPS. This information is being collected to ensure compliance with 40 CFR part 60, subparts Cb and Eb. In general, all EG and NSPS require initial notifications, performance tests, and periodic reports by the owners or operators of the affected facilities. They are also required to maintain records of the occurrence and duration of any SSM in the operation of an affected facility, or any period during which the monitoring system is inoperative. These notifications, reports, and records are essential in determining compliance, and are required of all affected facilities subject to EG or NSPS.
The proposed amendments to the EG and NSPS would remove SSM exclusions and exceptions. These proposed amendments would also streamline regulatory language, revise recordkeeping, and require electronic reporting requirements; re-establish new and existing source applicability dates; clarify requirements for air curtain incinerators; correct certain typographical errors; make certain technical corrections and clarify certain provisions in the NSPS and EG. See section 4 of the Supporting Statement to the ICR for these proposed amendments in the docket to this rulemaking for more details.
For the proposed amendments to the EG in 40 CFR part 60, subpart Cb, the EPA is also proposing to revise all emission limits, except CO for two combustor subcategories. Similarly, for the proposed amendments to NSPS 40 CFR part 60, subpart Eb, the EPA is proposing to revise all emission limits.
Because EPA is proposing to revise applicability dates and ultimately reserve subpart Ea, the burden associated with units currently subject to subparts Ea and Eb has been combined with the burden for those currently subject to subpart Cb. The EPA does not anticipate any construction of new units or NSPS-triggering reconstruction or modifications of existing units within the next 3 years.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.
Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden to the EPA using the docket identified at the beginning of this rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs via email to
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. We have estimated that no small entities would be affected by the proposed changes to the EG and NSPS. For more information, please refer to the RIA for the proposed rule.
This action may contain a Federal mandate under UMRA, 2 U.S.C. 1531-1538, that may result in expenditures of $100 million or more for state and local governments, in the aggregate, and on the private sector. As explained in section VI.F, this action does not impose specific requirements on tribal governments. As a result of these potential impacts to governmental entities and the private sector, the EPA initiated consultation with these entities. The EPA also held meetings described in section VI. E of this preamble under Federalism consultation.
The EPA has concluded that this action has federalism implications under EPA policy for implementing E.O. 13132, Federalism, because the rule imposes substantial direct compliance costs on state or local governments, and the Federal government will not provide the funds necessary to pay those costs. The EPA conducted a Federalism/UMRA consultation outreach briefing on March 16, 2023. Invited participants included representatives from the National Governors Association, the National Conference of State Legislatures, the Council of State Governments, the National League of Cities, the U.S. Conference of Mayors, the National Association of Counties, the International City/County Management Association, the National
This action does not have tribal implications as specified in Executive Order 13175. The EPA is not aware of any large MWC unit owned or operated by tribal governments. During the development of this action, the EPA offered pre-proposal government-to-government consultation with Tribal Nations. No Tribal Nations requested consultation with the EPA. This action will not have substantial direct costs or impacts 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, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to the proposed amendments. Consistent with the
The EPA interprets Executive Order 13045 as applying to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not a “significant energy action” because the proposed amendments are not likely to have a significant adverse effect on the supply, distribution, or use of energy. There would be no change in energy consumption resulting from the proposed amendments, and the EPA does not expect any price increase for any energy type. We also expect that there would be no impact on the import of foreign energy supplies, and no other adverse outcomes are expected to occur with regards to energy supplies.
This rulemaking involves technical standards. Therefore, the EPA conducted searches through the Enhanced National Standards System Network Database managed by the American National Standards Institute (ANSI) to determine if there are voluntary consensus standards (VCS) that are relevant to this action. The Agency also contacted VCS organizations and accessed and searched their databases.
We conducted searches for EPA Methods 1, 3A, 3B, 5, 6, 6A, 6C, 7, 7A, 7C, 7D, 7E, 9, 10, 10A, 10B, 19, 22, 23, 26, 26A, 29 of 40 CFR part 60, Appendix A. No applicable voluntary consensus standards were identified for EPA Methods 6C, 7D, 7E, 19 and 22.
During the search, if the title or abstract (if provided) of the VCS described technical sampling and analytical procedures that are similar to the EPA's reference method, the EPA considered it as a potential equivalent method. All potential standards were reviewed to determine the practicality of the VCS for these rules. This review requires significant method validation data which meet the requirements of EPA Method 301 for accepting alternative methods or scientific, engineering and policy equivalence to procedures in the EPA reference methods. The EPA may reconsider determinations of impracticality when additional information is available for particular VCS.
Three voluntary consensus standards were identified as an acceptable alternative to EPA test methods for the purposes of these rules.
The EPA proposes to allow use of the manual portion only and not the instrumental portion of voluntary consensus standard ANSI/ASME PTC 19-10-1981 Part 10 (2010), “Flue and Exhaust Gas Analyses” as an acceptable alternative to EPA Methods 3B, 6, 6A, 6B, 7, 7C. This method is available at the American National Standards Institute (ANSI), 1899 L Street NW, 11th Floor, Washington, DC 20036 and the American Society of Mechanical Engineers (ASME), Three Park Avenue, New York, NY 10016-5990. See
The EPA proposes to allow the use of the voluntary consensus standard ASTM D7520-16, “Standard Test Method for Determining the Opacity of a Plume in the Outdoor Ambient Atmosphere” as an acceptable alternative to EPA Method 9 only if the following conditions are followed:
1. During the digital camera opacity technique (DCOT) certification procedure outlined in Section 9.2 of ASTM D7520-16, you or the DCOT vendor must present the plumes in front of various backgrounds of color and contrast representing conditions anticipated during field use such as blue sky, trees, and mixed backgrounds (clouds and/or a sparse tree stand).
2. You must also have standard operating procedures in place including daily or other frequency quality checks to ensure the equipment is within manufacturing specifications as outlined in Section 8.1 of ASTM D7520-16.
3. You must follow the record keeping procedures outlined in 40 CFR 63.10(b)(1) for the DCOT certification, compliance report, data sheets, and all raw unaltered JPEGs used for opacity and certification determination.
4. You or the DCOT vendor must have a minimum of 4 independent technology users apply the software to determine the visible opacity of the 300 certification plumes. For each set of 25 plumes, the user may not exceed 15 percent opacity of anyone reading and the average error must not exceed 7.5 percent opacity.
5. This approval does not provide or imply a certification or validation of any vendor's hardware or software. The onus to maintain and verify the certification and/or training of the DCOT camera, software, and operator in accordance with ASTM D7520-16 and conditions 1 to 4 above is on the facility, DCOT operator, and DCOT vendor.
This method is available at ASTM International, 1850 M Street NW, Suite 1030, Washington, DC 20036. See
The EPA proposes to allow the use of the voluntary consensus standard ASTM D6784-16, “Standard Test Method for Elemental, Oxidized, Particle-Bound and Total Mercury Gas Generated from Coal-Fired Stationary Sources (Ontario Hydro Method)” (D6784-16 was reapproved in 2016 to include better quality control than earlier 2008 version) as an acceptable alternative to EPA Method 29 (portion for Hg only) as a method for measuring Hg. Note that this approval applies to concentrations approximately in the range of 0.5 to 100 micrograms per standard cubic meter (μg/Nm
In addition, for the purpose of this rule, the EPA proposes to allow the use of facility operator certification method ASME QRO-1-2005 (R2015), Standard for the Qualification and Certification of Resource Recovery Facility Operators. The 1995 rule cited a certification for facility operator ASME QRO-1-1994. Since that time, ASME has released a 2005 version as the most recent one available. This method is available at the American Society of Mechanical Engineers (ASME), Three Park Avenue, New York, NY 10016-5990. See
Additional information for the VCS search and determinations can be found in the memorandum,
Under 40 CFR 60.8(b) and 60.13(i) of subpart A of the General Provisions, a source may apply to the EPA to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications or procedures in the final rule or any amendments. The EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially applicable VCS and to explain why such standards should be used in these regulations.
The EPA is incorporating by reference the VCS ANSI/ASME PTC 19.10-1981 Part 10 (2010), “
The EPA believes that the human health or environmental conditions that exist prior to this action result in or have the potential to result in disproportionate and adverse human health or environmental effects on communities with environmental justice concerns. As stated in Section IV.F. of this preamble, the locations of the new, modified, and reconstructed sources that will become subject to the proposed large MWC NSPS (40 CFR 60, subpart Eb) are not known. Therefore, to examine the potential for any EJ issues that might be associated with the proposed NSPS, we performed a proximity demographic analysis for the 57 existing large MWC facilities that are currently subject to 40 CFR part 60, subparts Cb, Ea and Eb. These characterize populations near existing facilities that might modify or reconstruct in the future and become subject to the proposed NSPS requirements.
For large MWCs, a total of 3.9 million people live within 5 kilometers (approximately 3.1 miles) of existing facilities. The proportion of demographic groups living near large MWC facilities are above the national average, include African American, Hispanic or Latino and other/multiracial populations. The proportion of other demographic groups living within 5 kilometers of large MWC facilities is similar or lower than the national average. See section IV.F for an analysis that characterizes populations living in proximity of facilities and risks prior to the proposed regulation.
The EPA believes that this action is likely to reduce existing disproportionate and adverse effects on communities with environmental justice concerns. While the locations of the new, modified, and reconstructed sources that will become subject to the proposed large MWC NSPS (40 CFR 60 subpart Eb) are not known, this action proposes to establish standards for large MWC emission sources that will enhance protection for these populations by reducing pollutant emissions at future modified and reconstructed sources and minimizing future emission increases resulting from new sources. The proposed amendments to the EG and NSPS would also remove exclusions and exceptions from compliance during periods of SSM.
The EPA additionally identified and addressed EJ concerns by engaging in outreach activities to communities we expect to be impacted most by the rulemaking (see section II.F).
The information supporting this Executive Order review is contained in Section IV.G of this preamble. The demographic analysis is presented in the document
Environmental protection, Air pollution control, Hazardous substances, Incorporation by reference,
Office of Government-wide Policy (OGP), General Services Administration (GSA).
Proposed rule.
The United States General Services Administration (GSA) is proposing to amend the FTR by removing the relocation miscellaneous expenses allowance (MEA) lump sum amounts from the FTR. These lump sum amounts will be published in FTR Bulletins on an intermittent basis, much like what is done for per diem and mileage rates. The relocation MEA actual (as opposed to lump sum) amounts are unchanged and will remain in the FTR. The proposed rule would also update the types of expenses that may or may not be reimbursed by relocation MEA when employees itemize under actual expense. The proposed rule would also update and clarify other relocation MEA regulatory sections and rearrange them into a more sequential order.
Interested parties should submit written comments to the Regulatory Secretariat Division at the address shown below on or before March 25, 2024 to be considered in the formation of the final rule.
Submit comments in response to FTR Case 2022-04 to:
For clarification of content, contact Mr. Rodney (Rick) Miller, Program Analyst, Office of Government-wide Policy, at 202-501-3822 or
GSA is proposing to amend the FTR by removing the relocation MEA lump sum amounts, providing that lump sum amounts will be published in FTR Bulletins on an intermittent basis, rearranging the relocation MEA sections into a more sequential order, clarifying and modifying relocation MEA sections by updating employee eligibility for relocation MEA, and updating examples of expenses for which relocation MEA may be authorized or not.
Pursuant to 5 United States Code (U.S.C.) 5738, the Administrator of General Services is authorized to prescribe regulations necessary to implement laws regarding Federal employees when assigned a temporary change of station (TCS) or when otherwise transferred in the interest of the Government. The overall implementing authority is the FTR, codified in title 41 of the Code of Federal Regulations, chapters 300 through 304.
GSA's OGP continually reviews and adjusts policies and regulations under its purview to address Government relocation needs and to incorporate best practices, where appropriate, as a part of its ongoing mission to provide policies for travel by Federal civilian employees and others authorized to travel at Government expense.
Pursuant to 5 U.S.C. 5724a(f) and 5737(a)(6), an employee transferred in the interest of the Government from one official station to another, assigned to a TCS location, or who has completed a TCS assignment and returned to their previous official station is authorized a relocation MEA.
The purpose of the relocation MEA is to defray some of the costs incurred due to relocating. The allowance is related to expenses that are common to living quarters, such as fees for disconnecting and connecting appliances; cutting and fitting rugs, draperies, and curtains moved from one residence to another; utility fees or deposits that are not offset by eventual refunds; forfeiture of medical, dental, and other non-transferrable contracts; and the cost of changing automobile registration(s) and driver's licenses.
The FTR provides that a relocation MEA may be paid using one of two methods: lump sum or actual expense. Under the lump sum method, the agency pays a lump sum amount without requiring employee documentation of expenses. Under the current regulatory language, the lump sum amounts are “either $650 or the equivalent of one week's basic gross pay, whichever is the lesser amount” for an employee without immediate family members relocating with them, and “$1300 or the equivalent of two weeks' basic gross pay, whichever is the lesser amount” for an employee with immediate family members relocating with them.
Under the actual expense method, the agency may authorize the employee to claim actual costs depending on the type of expenses incurred, in an amount in excess of the prescribed lump sum amount. The employee justifies any actual expenses by itemizing with supporting documentation. Reimbursement is limited to one or two weeks' basic gross pay depending on whether or not the employee has an immediate family relocating with them, not to exceed the maximum rate payable for a position at GS-13, Step 10, of the General Schedule (base) (see 5 U.S.C. 5332).
The proposed rule would amend the FTR by removing the relocation MEA lump sum amounts from the FTR and directing readers to an FTR bulletin with the relocation MEA lump sum amounts. GSA would publish the initial FTR bulletin with the relocation MEA lump sum amounts prior to the final rule effective date. Agencies are advised that the relocation MEA lump sum amounts are expected to increase since they were last updated in 2011. Moving forward, GSA will publish FTR bulletins to update the relocation MEA lump sum amounts, as needed, based on changes to the Consumer Price Index. The proposed rule would also clarify in the regulatory text that “basic gross pay”, as referenced in FTR part 302-16,
This proposed rule would also update and clarify the relocation MEA sections in the FTR and rearrange them into a more sequential order, to include replacing the table at FTR 302-16.2 with an updated list of examples for which the relocation MEA may be authorized, and updating the list of examples for which the relocation MEA may not be authorized. It would also remove the relocation MEA employee eligibility table at FTR 302-16.3 and reformat it as an employee eligibility listing.
The following section is a list of activities related to the regulatory compliance that GSA anticipates will occur during the first and subsequent years after publication of the final rule. GSA estimates this cost by multiplying the time required to conduct these activities (publication of a proposed rule, final rule, FTR bulletin, and increase in the relocation MEA lump sum amounts) by the estimated (rounded) compensation. GSA calculates the estimated hourly compensation using the U.S. Office of Personnel Management's 2023 General Schedule (GS) Rest of United States Locality Pay Table, the full fringe benefit cost factor of 36.25 percent,
GSA estimated the total cost each year to issue a FTR bulletin with the new relocation MEA lump sum amount, based on the number of GSA full-time employees (FTEs), the average hourly rate for each grade level, and the number of hours to draft the FTR bulletin by program managers, hours to review by General Counsel, and hours to review and approve by senior management.
GSA estimates it will take 8 GSA employees on average, with a GS-14 step 5 with an average hourly rate of $96.45/hour, 1 hour each in year 1 to draft the initial FTR bulletin with the relocation MEA lump sum amount. Therefore, GSA estimates the total estimated cost for this part of the rule to be $772 (= 8 × $96.45 GS-14 step 5 rate × 1 hour).
GSA estimates it will take 1 GSA employee on average, with a GS-15 step 5 with an average hourly rate of $113.46/hour, 1 hour in year 1 to review the initial FTR bulletin with the relocation MEA lump sum amount. Therefore, GSA estimates the total estimated cost for this part of the rule to be $113 (= 1 × $113.46 GS-15 step 5 rate × 1 hour).
GSA estimates it will take 1 GSA General Counsel staff on average, with a SES Level 3 with an average hourly rate of $142.59/hour, 1 hour in year 1 to review the initial FTR bulletin with the relocation MEA lump sum amount. Therefore, GSA estimates the total estimated cost for this part of the rule to be $143 (= 1 × $42.59 SES Level 3 rate × 1 hour).
Therefore, GSA estimates the total estimated cost for this part of the rule to be $1,027 for the initial FTR bulletin and each additional year a FTR bulletin is issued for new lump sum amounts ($1,027 × 10 years = $10,270).
A relocation MEA is a mandatory relocation entitlement to those current employees that transfer from one official duty station to another. Agencies are advised that the relocation MEA lump sum amounts are expected to increase since they were last updated in 2011. Therefore, after publication of the final rule, GSA will publish a FTR bulletin to change the relocation MEA lump sum amounts, with projected increases, from $650 to $750 for an employee without immediate family members relocating with them and from $1,300 to $1,500 for an employee with immediate family members relocating with them.
GSA requires Federal agencies to track general relocation data regarding entitlements but not the specific data regarding types of expenses authorized within the relocation entitlement category. GSA used data from the Business Travel and Relocation Dashboard, which only accounts for the overall MEA claims and does not differentiate between the types of MEA or if MEA is authorized for a single employee or an employee with family members, to calculate average annual relocation MEA costs per claim across Federal agencies from fiscal year 2018 to fiscal year 2022.
GSA calculates the average relocation MEA lump sum amount between the employees without immediate family members and employees with immediate family members amounts to be $1,125 (= $750 + $1,500/2).
GSA assumes the average relocation MEA lump sum amount across Federal agencies will increase to $1,125. GSA multiplied the difference between $1,125 and the average annual relocation MEA cost per claim for those Federal agencies with an average annual MEA cost per claim less than $1,125 by the number of average annual MEA claims for the respective Federal agency.
Therefore, assuming the number of relocation transfers entitled to MEA on average will stay consistent, with the current overall agency average at less than the current rate of $1,300, and an increase in the MEA lump sum rate, for years 1 through 10, GSA estimates the total overall increase in associated transfer payments to be $312,973 each year for years 1 through 10 ($312,973 × 10 years = $3,129,730).
GSA estimated the total cost it will no longer be required to take to issue a FTR proposed rule and final rule with new relocation MEA lump sum amount, based on the number of GSA full time employees (FTEs), the average hourly rate for each grade level, and the number of hours to draft the FTR proposed and final rule by program managers, hours reviewed by General Counsel, and hours to review and approve by senior management.
GSA estimates it will no longer take 3 GSA employees on average, with a GS-14 step 5 with an average hourly rate of $96.45/hour, 8 hours each in year 1 to draft a proposed rule for relocation MEA lump sum changes. Therefore, GSA estimates the total estimated cost savings for this part of the rule to be $2,315 (= 3 × $96.45 GS-14 step 5 rate × 8 hours).
GSA estimates it will no longer take 3 GSA employees on average, with a GS-15 step 5 with an average hourly rate of $113.46/hour, 8 hours each in year 1 to review a proposed rule for relocation MEA lump sum changes. Therefore, GSA estimates the total estimated cost savings for this part of the rule to be $2,723 (= 3 × $113.46 GS-15 step 5 rate × 8 hours).
GSA estimates it will no longer take 4 GSA General Counsel staff on average, with a SES Level 3 with an average hourly rate of $142.59/hour, 8 hours each in year 1 to review a proposed rule for relocation MEA lump sum changes. Therefore, GSA estimates the total estimated cost savings for this part of the rule to be $4,563 (= 4 × $142.59 SES Level 3 rate × 8 hours).
These estimated costs do not account for other agencies who review the rules prior to publication in the
The total undiscounted estimated Government costs of drafting a FTR bulletin and eliminating drafting a proposed and final rule is $1,698 over a 10-year period. The total undiscounted estimated associated transfer payments, assuming the number of relocation transfers entitled to MEA on average will stay consistent, the current overall agency average is less than the current rate of $1,300, and the increase in the MEA lump sum rate, is $3,129,730 over a 10-year period. The total present value estimated Government costs calculated for a 10-year time horizon at 3 percent is $438 and at 7 percent is −$798. The total discounted estimated associated transfer payments calculated for a 10-year horizon at 3 percent is $2,328,813 and at 7 percent is $1,590,996.
Executive Orders (E.O.s) 12866 (Regulatory Planning and Review) directs 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 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. E.O. 14094 (Modernizing Regulatory Review) supplements and reaffirms the principles, structures, and definitions governing contemporary regulatory review established in E.O. 12866 and E.O. 13563. OIRA has determined this is a significant regulatory action and, therefore, was subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993.
GSA does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
The Paperwork Reduction Act does not apply because the changes to the FTR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501,
Government employees, Travel and Transportation expenses.
5 U.S.C. 5738; 20 U.S.C. 905(a); E.O. 11609, as amended, 3 CFR, 1971-1975 Comp., p. 586.
Use of pronouns “I,” “you,” and their variants throughout this subpart refers to the employee, unless otherwise noted.
The miscellaneous expenses allowance (MEA) is intended to help defray various costs incurred due to relocation, assignment to a temporary official station (TCS), and return to the previous official station upon completion of a TCS assignment.
(a) You are eligible for a MEA if:
(1) Your agency authorized or approved a transfer or a TCS;
(2) You discontinued and established a residence in connection with your transfer or TCS;
(3) You meet the applicable eligibility conditions in part 302-1 of this chapter; and
(4) You signed a required service agreement in part 302-2 of this chapter, if transferred.
(b) You are not eligible for a MEA if you are:
(1) A new appointee;
(2) A Senior Executive Service (SES) employee authorized “last move home” benefits upon separation from Government service;
(3) Assigned under the Government Employees Training Act (5 U.S.C. 4109);
(4) Returning from an OCONUS official station to place of actual residence for separation from Government service; or
(5) Returning from an OCONUS official station to a new CONUS official station if relocation expenses have not been authorized to the new CONUS official station.
Yes, if you meet the applicable eligibility conditions in § 302-16.2, your agency must authorize payment of a MEA.
You will be reimbursed your MEA in accordance with your agency's internal relocation policy.
No, your agency may not authorize an advance of funds for MEA. MEA may be paid after you have transferred to the new official station, upon assignment to your TCS, or upon completion of your TCS and return to your previous official station, as applicable.
The following amounts will be paid for miscellaneous expenses without support or documentation of expenses:
(a) Either a lump sum amount set in an FTR bulletin or the equivalent of one week's basic gross pay, whichever is the lesser amount, if you have no immediate family relocating with you; or
(b) Either a lump sum amount set in an FTR bulletin or the equivalent of two weeks' basic gross pay, whichever is the lesser amount, if you have immediate family relocating with you.
GSA publishes the lump sum amounts in an FTR bulletin on an intermittent basis at
Yes, you may claim an amount in excess of that prescribed in § 302-16.6 if authorized by your agency; and
(a) Supported by acceptable statements of fact, paid bills or other acceptable evidence (documentation) justifying the amounts claimed; and
(b) The aggregate amount does not exceed your basic gross pay (at the time you reported for duty, at your new official station) for:
(1) One week if you are relocating without an immediate family; or
(2) Two weeks if you are relocating with an immediate family.
(c) The amount authorized cannot exceed the maximum rate of grade GS-13, Step 10 General Schedule (base) salary (excluding locality pay) (see 5 U.S.C. 5332) at the time you reported for duty at your new official station.
Miscellaneous expenses are costs associated with relocating that are not covered by other relocation benefits detailed in chapter 302. Expenses allowable include but are not limited to the following, and similar, items:
(a) Fees for disconnecting and connecting utilities (such as gas, water, electricity), appliances, equipment (such as a security system or electric vehicle charging station), or conversion of appliances for operation on available utilities;
(b) Fees for cutting and fitting rugs, draperies, and curtains when they are moved from one residence to another;
(c) Deposits or fees for utilities not offset by eventual refunds;
(d) Losses that cannot be recovered by transfer or refund and are incurred due to early termination of a contract (
(e) Automobile registration, driver's license, and use taxes imposed when initially bringing privately-owned vehicles (POVs) into certain jurisdictions;
(f) Reinstalling or removing automobile parts upon vehicle reentry into the United States or entry into a foreign country, when removal or installation of those automobile parts was required by host country law;
(g) Post office box rental fee when rented to provide a constant mailing address between the time an employee departs the old residence and occupies a residence at the new official station;
(h) Rental agent fees customarily charged for securing housing in foreign countries;
(i) Reassembly, set up, and tuning of a piano moved for relocation;
(j) Pet care (for cats and dogs only), child care, or adult care for dependent parents or other adult dependents incapable of self-care at home while the employee or spouse are away on a househunting trip, or are packing or unpacking;
(k) Rental car fees while awaiting a delayed POV shipment to or from OCONUS if the transportation service provider (TSP) has not arranged for the employee's use of a rental car at TSP expense. Reimbursement may be authorized starting after the shipping company designated delivery date, shall not exceed 10 days, and does not include the days after the POV is delivered or a new POV is purchased at location. The rental car for the employee and immediate family members must be the same or comparable size or model as the POV the employee shipped;
(l) Transportation and quarantine of pets (cats and dogs only). Costs normally associated with the transportation, quarantine fees, and handling of dogs and cats. This includes pet-related costs due to air carrier rules or imposed by the law of the jurisdiction of the employee's new residence as an integral part of the process of admissions and licensing;
(m) Professional relicensing fees required by the new official station that are directly related to the employee's occupation, such as fees required to take the bar exam or teaching certification; and professional relicensing fees or business costs (including exam, continuing education courses, business license, permit, and registration fees) that are directly related to the immediate family member's occupation, when the immediate family member was licensed or certified in a profession, or owned a business, at the employee's previous official station and is required to secure or maintain a new professional license or certification, or business license or permit, to engage in that profession in a new jurisdiction because of unique licensing or certification requirements and authorities; or
(n) Specialized shipment of hazardous materials, such as lithium batteries, when Federal, state, local, and foreign country laws or carrier regulations prohibit commercial shipment of certain articles not included as part of household goods, which cannot be otherwise transported to the new official station because of shipping and transportation restrictions.
Examples of costs that are not reimbursable from the MEA are:
(a) Losses in selling or buying real and personal property and costs related to such transactions;
(b) Cost of additional insurance on household goods while in transit to the new official station or cost of loss or damage to such property;
(c) Additional costs of moving household goods caused by exceeding the maximum weight limitation;
(d) Costs of newly acquired items, such as the purchase or installation cost of new rugs or draperies;
(e) Higher income, real estate, sales, or other taxes as the result of establishing residence in the new locality;
(f) Fines imposed for traffic infractions while en route to the new official station locality;
(g) Accident insurance premiums or liability costs incurred in connection with travel to the new official station locality, or any other liability imposed upon the employee for uninsured damages caused by accidents for which the employee or their immediate family is held responsible;
(h) Losses as the result of sale or disposal of items of personal property (such as lithium batteries, gasoline, and natural gas) not considered convenient or practicable to move;
(i) Damage or loss of clothing, luggage, or other personal effects while traveling to the new official station locality;
(j) Subsistence, transportation, or mileage expenses in excess of the amounts reimbursed as per diem or other allowances under this regulation;
(k) Medical expenses due to illness or injuries while en route to the new official station or while living in temporary quarters at Government expense under the provisions of this chapter;
(l) Costs incurred in conjunction with structural alterations (such as remodeling or modernizing of living quarters, garages or other buildings to accommodate privately-owned automobiles, appliances or equipment [
(m) Costs incurred in connection with preparing a residence for sale or
(n) Delivery charges or costs associated with newly-acquired items (such as appliances, security systems, locksmith service, or new vehicle) at the new official station for reasons of personal taste or preference and not required because of the relocation;
(o) Costs unrelated to the quarantine, transportation, and handling of pets. Additional costs for lodging for a second room or boarding fees, micro-chipping, veterinary expenses (
(p) Costs related to obtaining a visa, passport, immigration green card, birth certificate or other acceptable evidence of birth when required for official travel to foreign locations; charges for immunization, inoculations, other disease-preventative medical prophylaxis, including disease testing, that are required for official travel if not obtained through the agency. The expenses in this paragraph may be reimbursable as part of the employee's relocation en route travel miscellaneous expenses as specified in § 301-12.1 of this chapter.
You must exercise the same care in incurring expenses that a prudent person would exercise if relocating at personal expense.
Use of pronouns “we,” “you,” and their variants throughout this subpart refers to the agency.
For MEAs, you must establish policies and procedures governing:
(a) Who will determine whether payment for an amount in excess of the lump sum MEA is appropriate; and
(b) How you will pay a MEA in accordance with §§ 302-16.2 and 302-16.3.
You should limit payment of miscellaneous expenses to only those expenses that are necessary.
Yes, a MEA cannot be used to reimburse:
(a) Costs or expenses incurred which exceed maximums provided by statute or in this subtitle;
(b) Costs or expenses incurred but which are disallowed elsewhere in this subtitle;
(c) Costs reimbursed under other provisions of law or regulations;
(d) Costs or expenses incurred for reasons of personal taste or preference and not required because of the move;
(e) Losses covered by insurance;
(f) Fines or other penalties imposed upon the employee or members of their immediate family;
(g) Judgments, court costs, and similar expenses growing out of civil actions; or
(h) Any other expenses brought about by circumstances, factors, or actions in which the move to a new official station was not the proximate cause.
U.S. Agency for International Development.
Proposed rule.
The U.S. Agency for International Development (USAID) seeks public comment on a proposed rule that would revise the Agency for International Development Acquisition Regulation (AIDAR) to maintain consistency with Federal and Agency regulations, remove obsolete material and internal Agency procedures, and make editorial amendments to better clarify the regulation.
Comments must be received no later than February 22, 2024.
Submit comments, identified by the title of the action and Regulatory Information Number (RIN) through the Federal eRulemaking Portal at
Lyudmila Bond, Telephone: 202-916-2622 or Email:
The Providing Accountability Through Transparency Act of 2023 (12 U.S.C. 553(b)(4)) requires that a notice of proposed rulemaking include the internet address of a summary of not more than 100 words in length of the proposed rule, in plain language, that shall be posted on the internet website under section 206(d) of the E-Government Act of 2002 (44 U.S.C. 3501 note). In summary: “USAID seeks public comment on a proposed rule that would revise the AIDAR to maintain consistency with Federal and Agency regulations, remove obsolete material and internal Agency procedures, and make editorial amendments to better clarify the regulation. For detailed information on these revisions, please see a final rule with the same RIN and title.”
The proposal, including the summary provided herein, can be found at
USAID is publishing in the “Rules and Regulations” section of this
If no significant adverse comment is received in response to the direct final rule, no further action will be taken related to this proposed rule.
If significant adverse comment(s) are received on the direct final rule, USAID will publish a timely withdrawal in the
All comments must be in writing and submitted through one of the methods specified in the Addresses section above. All submissions must include the title of the action and RIN for this rulemaking. Please include your name, title, organization, postal address, telephone number, and email address in the text of the message. Please note, however, that because security screening precautions have slowed the delivery and dependability of surface mail to USAID/Washington, USAID recommends sending all comments to the Federal eRulemaking Portal.
All comments received will be posted without change to the Federal eRulemaking Portal including any personal information provided.
As noted above, in the “Rules and Regulations” section of this
American Battle Monuments Commission.
Notice of performance review board appointments.
This notice provides the names of individuals who have been appointed to serve as members of the American Battle Monuments Commission Performance Review Board. The publication of these appointments is required by section 405(a) of the Civil Service Reform Act of 1978.
These appointments are effective as of 01 October 2023.
Jamilyn Smyser, Chief of Human Resources and Administration, American Battle Monuments Commission, Courthouse Plaza II, Suite 500, 2300 Clarendon Boulevard, Arlington, Virginia 22201. Telephone number: (703) 584-1552
An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the Foreign-Trade Zone of Southeast Texas, Inc., grantee of FTZ 116, requesting an expansion of Subzone 116F on behalf of Port Arthur LNG, LLC. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the FTZ Board (15 CFR part 400). It was formally docketed on January 18, 2024.
The applicant is requesting authority to expand Subzone 116F to include a new site located at 3750 South Gulfway Drive in Port Arthur (Site 3, 25.089 acres). No additional authorization for production activity has been requested at this time.
In accordance with the FTZ Board's regulations, Camille Evans of the FTZ Staff is designated examiner to review the application and make recommendations to the FTZ Board.
Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary and sent to:
A copy of the application will be available for public inspection in the “Online FTZ Information Section” section of the FTZ Board's website, which is accessible via
For further information, contact Camille Evans at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) is rescinding the administrative review of the antidumping duty (AD) order on large diameter welded pipe (LDWP) from Greece for the period of review (POR) May 1, 2022, through April 30, 2023.
Applicable January 23, 2024.
Taylor Hatley, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4886.
On May 2, 2023, Commerce published in the
On July 12, 2023, Commerce published in the
On July 21, 2023, the petitioner filed comments with respect to the CBP data.
On January 3, 2024, Commerce notified all interested parties of its intent to rescind the instant review in whole because there were no reviewable, suspended entries of subject merchandise by Corinth,
Pursuant to 19 CFR 351.213(d)(3), it is Commerce's practice to rescind an administrative review of an AD order when there are no reviewable entries of subject merchandise during the POR for which liquidation is suspended.
Commerce will instruct CBP to assess antidumping duties on all appropriate entries. Antidumping duties shall be assessed at rates equal to the cash deposit of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of this rescission notice in the
This notice serves as the only 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 terms of an APO is a sanctionable violation.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act, and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The U.S. Department of Commerce (Commerce) is rescinding the administrative review of the antidumping duty (AD) order on light-walled rectangular pipe and tube (LWRPT) from the Republic of Korea (Korea) for the period of review (POR) August 1, 2022, through July 31, 2023.
Applicable January 23, 2024.
Carolyn Adie, 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) 482-6250.
On August 5, 2008, Commerce published in the
On November 15, 2023, Hoa Phat submitted a letter notifying Commerce that it had no exports, sales, or entries
On December 11, 2023, Commerce notified all interested parties of its intent to rescind the review in full because there were no suspended entries by the company subject to this review during the POR and invited interested parties to comment on Commerce's intent to rescind.
In Hoa Phat's No Shipment Letter, Hoa Phat argues that none of the entries of LWRPT manufactured by Hoa Phat are included in the scope of this administrative review because all of the hot-rolled steel (HRS) used to produce the LWRPT that Hoa Phat exported to the United States that entered U.S. customs territory on or after August 4, 2022 was produced in Vietnam, not Korea.
In
Accordingly, we are rescinding this review because there are no suspended entries during the POR for the company for which this review has been initiated. Further, pursuant to the
Pursuant to 19 CFR 351.213(d)(3), it is Commerce's practice to rescind an administrative review of an AD order when there are no suspended entries during the POR for the companies for which the review was initiated.
Commerce will instruct CBP to assess antidumping duties on all appropriate entries. Antidumping duties shall be assessed at rates equal to the cash deposit rate of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue assessment instructions to CBP no earlier than 35 days after the date of publication of this rescission notice in the
This notice serves as the only 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 terms of an APO is a violation subject to sanction.
This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Tariff Act of 1930, as amended, and 19 CFR 351.213(d)(4).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
NMFS will convene the Research Track Assessment Peer Review
The public portion of the Research Track Assessment Peer Review Meeting will be held from February 12, 2024, through February 15, 2024. The meeting will conclude on February 15, 2024, at 4 p.m. Eastern Standard Time. Please see
The meeting will be held in person and virtually. The in person meeting will be held in the S.H. Clark Conference Room in the Aquarium Building of the National Marine Fisheries Service, Northeast Fisheries Science Center (NEFSC), 166 Water Street, Woods Hole, MA 02543 and virtually using this Google Meet link:
Michele Traver, 508-495-2195,
For further information, please visit the NEFSC website at
The agenda is subject to change; all times are approximate and may be changed at the discretion of the Peer Review Chair.
The meeting is open to the public; however, during the “Report Writing” session on Friday, February 15, 2024, the public should not engage in discussion with the Peer Review Panel.
This meeting is physically accessible to people with disabilities. Special requests should be directed to Michele Traver, via email (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; correction.
This notice contains a correction to the Summary of Request section of the notice of proposed incidental harassment authorization (IHA) for the taking of marine mammals incidental to marine site characterization surveys in waters off of New York, New Jersey, Delaware, and Maryland published in the
Alyssa Clevenstine, Office of Protected Resources, NMFS, (301) 427-8401.
In the
These previous monitoring results are available to the public on our website:
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The South Atlantic Fishery Management Council (Council) will hold a meeting of the Wreckfish Sub-Committee.
The Wreckfish Sub-Committee meeting will be held via webinar on February 8, 2024. The meeting will be held from 9 a.m. until 12:30 p.m., EDT.
Christina Wiegand, Fishery Social Scientists, SAFMC; phone: (843) 571-4366 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
The Wreckfish Sub-Committee will discuss Amendment 48 to the Snapper Grouper Fishery Management Plan, select preferred alternatives, and consider approval for public hearings. Current actions under consideration in Amendment 48 include: sector allocations, electronic reporting, fishing season, Individual Transferable Quota (ITQ) participation and eligibility requirements, fishery monitoring requirements, and cost recovery.
The meeting is physically accessible to people with disabilities. Requests for auxiliary aid should be directed to the Council office (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The South Atlantic Fishery Management Council (Council) will hold a meeting of the Scientific and Statistical Committee (SSC).
The SSC meeting will be held via webinar from 9 a.m. until 5 p.m. EST on February 9, 2024.
The meeting will be held via webinar.
Kim Iverson, Public Information Officer, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone: (843) 571-4366 or toll free: (866) SAFMC-10; fax: (843) 769-4520; email:
The meeting is open to the public via webinar as it occurs. Webinar registration is required. Information regarding webinar registration will be posted to the Council's website at:
The SSC meeting agenda includes the review of the Southeast Data Assessment and Review (SEDAR) 76 Black Sea Bass Operational Assessment; Snapper Grouper Management Strategy Evaluation; Terms of Reference, schedules, and participant selection for upcoming SEDAR assessments; and discussion of other business as needed. The SSC will provide guidance to staff and make recommendations for Council consideration.
The meeting is physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application for exempted fishing permit.
This notice announces NMFS' receipt of an application and the public comment period for an exempted fishing permit (EFP) from Real Time Data North America, LLC (RTDNA), a private company specializing in software/application development. If issued, this permit would allow the applicant to test methods for its software application to interface with and meet the electronic logbook (ELB) requirements without also meeting the duplicate hard copies recordkeeping and reporting requirement. The objectives of this EFP, if issued, would be to exempt fishery participants from the requirement to print paper logbooks when using a RTDNA ELB, and to test and scale a fully electronic reporting system in partnership with the NMFS Alaska Regional Office. Field testing would be conducted between March 1, 2024 and January 1, 2026. This experiment would have the potential to streamline recordkeeping and reporting requirements and thus promote the objectives of the Magnuson-Stevens
Comments on this EFP application must be submitted to NMFS on or before February 12, 2024. The North Pacific Fishery Management Council (Council) will consider the application at its meeting from February 5, 2024 through February 12, 2024.
The Council meeting will be held virtually and in person in Seattle, WA. The agenda for the Council meeting is available at
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Electronic copies of the EFP application and the basis for a categorical exclusion under the National Environmental Policy Act are available from
Amy Hadfield, 907-586-7228.
NMFS manages the groundfish fisheries in the exclusive economic zone of the Bering Sea and Aleutian Islands (BSAI) and GOA under the Fishery Management Plan (FMP) for Groundfish of the BSAI Management Area (BSAI FMP) and the FMP for Groundfish of the GOA (GOA FMP). The Council prepared the BSAI and GOA FMPs under the authority of the Magnuson-Stevens Fishery Conservation and Management Act, 16 U.S.C. 1801
NMFS requires daily fishing logbooks to be completed by most catcher vessels operating under a Federal Fisheries Permit. NMFS logbooks serve as a record of the location and time of fishing gear deployment and retrieval and the harvest and discard of target and non-target species. Logbook data are used to manage fisheries and assist in monitoring compliance with fishery regulations. Most vessel operators currently use paper logbooks to record the required information. However, upon approval of the Regional Administrator, vessel operators may use NMFS-approved electronic versions of the logbook. These systems are called electronic logbooks (ELBs).
Beginning in 2015, NMFS developed, with Council input, the Electronic Technologies Implementation Plan for the Alaska Region to guide integration of monitoring technologies into North Pacific fisheries management and provide goals and benchmarks to evaluate attainment of goals (plan and updates are available at
In 2023, RTDNA was awarded funding by the National Fish and Wildlife Federation to advance the development of electronic logbooks in Alaska's fishing industry. Throughout the year, RTDNA implemented the Deckhand ELB on 29 vessels as part of a pilot project. This initiative highlighted several regulatory challenges, particularly for smaller vessels. The feedback from vessel operators delivered to both RTDNA and NMFS staff revealed that existing regulations, initially designed without considering modern technologies like tablets, hinder the transition from paper-based recordkeeping to fully electronic logbooks. This pilot phase underscored the need for regulatory adaptations to accommodate electronic logbook systems.
Current regulations in the Alaska Region mandate daily printing and signatures on board vessels for users of NMFS-approved ELBs in Alaska federal fisheries. These regulations significantly limit the ability and potential for ELB technology to comprehensively benefit fishers and NMFS. NMFS believes the printing and signature requirements should be reconsidered and updated to allow innovation in modern ELB technologies. This requested EFP would exempt fishers from the regulations found in § 679.5(f)(3) and (4) that require fishing vessels to produce printed copies of ELB logsheets, ELB discard reports, and signatures on printed copies. If approved, this EFP would facilitate further research into necessary regulatory changes to integrate electronic logbooks effectively with modern technology.
On October 20, 2023, Mr. Lange Solberg of RTDNA submitted an application for an EFP to develop and test changes in regulations found in § 679.5(f)(3) and § 679.5(f)(4) that require vessels using ELB logbooks to produce printed copies of ELB logsheets, ELB discard reports, and signatures on printed copies. The objectives of this proposed EFP are as follows:
• To test 100 percent electronic submission of logbook and discard reports.
• To evaluate the effectiveness of electronic reporting in improving data accuracy and timeliness.
• To assess the feasibility of transferring data electronically to observers and International Pacific Halibut Commission port samplers.
• To demonstrate the potential for cost savings and efficiency gains through digital processes.
• To explore ways to enhance compliance with fishing regulations via electronic reporting.
• To gather data on the impact of electronic reporting on vessel operations.
Vessel operators participating in this project would utilize the Deckhand ELB platform, which is an iPad with RTDNA's software application installed, for data collection in halibut and groundfish fisheries in the North Pacific. Vessel operators would provide
Vessel operators would also assist in the testing methods for transferring logbook data to observers, IPHC port samplers and other authorized personnel either directly from the electronic device or via electronic communications. This project aims to improve overall efficiency, provide access to necessary ELB data and enable an end-to-end testing of a fully electronic logbook data collection and submission framework.
Two exemptions are necessary to conduct this project. First, an exemption would be necessary from the requirement at § 679.5(f)(3) for printed copies of ELB logsheet and discard reports on board participating vessels.
The second exemption would be from § 679.5(f)(4)'s requirement for physical signatures on printed ELB logsheets and discard reports on board participating vessels. Physical signatures would be replaced by electronic signatures using PINs.
The applicant would be required to submit to NMFS a report of the EFP results six months after the close of the 2025 IFQ fishing season. The report would include the method(s) chosen for digital signature and a comparison among methods if applicable; interactions with observers, port samplers and an analysis of both benefits and challenges of transferring required data to them electronically; and an analysis of cost savings, efficiency and impact aboard participating vessels. Under the current regulations, observers and port samplers both collect physical hard copies of the logbooks. Since there would no longer be physical pages under this EFP, best methods for the vessel operator to provide that information electronically must be developed. The activities that would be conducted under this EFP are not expected to have a significant impact on the human environment, as detailed in the categorical exclusion for this action (see
In accordance with §§ 679.6 and 600.745, NMFS has determined that the application warrants further consideration and has forwarded the application to the Council to initiate consultation. The Council is scheduled to consider the EFP application during its February 2024 meeting, which will be held in person in Seattle, WA with an option to participate virtually. The EFP application will also be provided to the Council's Scientific and Statistical Committee for review at the February Council meeting. The applicant has been invited to speak in support of the application.
Interested persons may comment on the application during the February 2024 Council meeting during public testimony or the Federal eRulemaking Portal (see
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; public meeting.
The Mid-Atlantic and New England Fishery Management Councils (Councils) will hold a public meeting of their joint Northeast Trawl Advisory Panel.
The meeting will be held on Thursday, February 8, 2024, from 9 a.m. to 5 p.m., EDT. For agenda details, see
This meeting will be conducted in person with a virtual option available.
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
The Councils' Northeast Trawl Advisory Panel will meet to review recent developments related to relevant fishery surveys, the Industry Based Multispecies Bottom Trawl Survey white paper, and Henry B. Bigelow bottom trawl survey contingency plan next steps. The Northeast Trawl Advisory Panel will also discuss topics related to survey redesign and mitigation, receive an update on the restrictor rope research manuscript and discuss potential expansion of that work, as well as brainstorm future research projects.
The meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Shelley Spedden, (302) 526-5251 at least 5 days prior to the meeting date.
Consumer Financial Protection Bureau.
Notice and request for comment.
In accordance with the Paperwork Reduction Act of 1995 (PRA), the Consumer Financial Protection Bureau (CFPB) is requesting the Office of Management and Budget's (OMB's) approval for a new information collection titled “Auto Finance Data Project.”
Written comments are encouraged and must be received on or before March 25, 2024 to be assured of consideration.
You may submit comments, identified by the title of the information collection, OMB Control Number (see below), and docket number (see above), by any of the following methods:
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Please note that comments submitted after the comment period will not be accepted. In general, all comments received will become public records, including any personal information provided. Sensitive personal information, such as account numbers or Social Security numbers, should not be included.
Requests for additional information should be directed to Anthony May, PRA Officer, at (202) 435-7278 or email:
The CFPB proposes to collect a set of data annually from lenders that originate greater than 20,000 auto loans in the previous calendar year. This data collection would mirror that which was collected in the Auto Finance Data Pilot. The CFPB also proposes to collect a set of data annually from lenders that originate greater than 500 loans and fewer than 20,000 loans in the previous calendar year. This data collection would annually collect information on the number of vehicles repossessed and the number of loan modifications.
Council on Environmental Quality.
Request for information; extension of comment period.
On November 20, 2023, the Council on Environmental Quality (CEQ) published a request for information (RFI) to solicit feedback on Phase One of the Environmental Justice Scorecard, which will inform future versions of the Environmental Justice Scorecard. This notice extends the deadline for receiving responses to this RFI by an additional 30 days, until February 22, 2024.
The comment period for the RFI published November 20, 2023, at 88 FR 80697, is extended. Comments should be received by 11:59 p.m. ET on February 22, 2024.
You may submit comments, identified by docket number CEQ-2023-0005, by any of the following methods:
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• By fax to 202-456-6546.
• By mail to Council on Environmental Quality, 730 Jackson Place NW, Washington, DC 20503 (must be received by February 22, 2024.
CEQ will publish public comments it receives in response to this notice, including personal information, without change on
Response to this RFI is voluntary. Each responding entity (individual or organization) is requested to submit only one response. Please feel free to respond to as many of the questions as you choose, indicating the number of each question that you are addressing. We encourage you to include your name and contact information, but it is not required. If you are responding on behalf of an organization, we further encourage you to include the organization's name, its type (
Kareem Ihmeidan, Staff Assistant for Environmental Justice, 202-395-5750,
On November 20, 2023, CEQ published an RFI in the
Office of the Under Secretary of Defense for Research and Engineering, Department of Defense (DoD).
Meeting of Federal advisory committee.
The DoD is publishing this notice to announce that the following Federal Advisory Committee meeting of the Defense Innovation Board (DIB) will take place.
Open to the public January 26, 2024, 10:00 a.m. to 11:30 a.m. Closed to the public January 26, 2024, 1:00 p.m. to 4:30 p.m. All Eastern Standard Time (EST).
The open portion of the DIB meeting will take place at the Pentagon and will be accessible to the public virtually; the closed portion of the meeting will be held in the Pentagon.
Dr. Marina Theodotou, the Designated Federal Officer (DFO) at (571) 372-7344 (voice) or
This meeting is being held under the provisions of chapter 10 of title 5, United States Code (U.S.C.) (commonly known as the “Federal Advisory Committee Act” or “FACA”), 5 U.S.C. 552b (commonly known as the “Government in the Sunshine Act”), and 41 Code of Federal Regulations (CFR) 102-3.140 and 102-3.150.
Due to circumstances beyond the control of the DFO and the DoD, the DIB was unable to provide public notification required by 41 CFR 102-3.150(a) concerning its January 26, 2024 meeting. Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement.
The DIB's closed portion of the meeting will take place January 26, 2024, from 1:00 p.m. to 4:30 p.m. During this time, the DIB will meet with senior Department leaders and other Subject Matter Experts from Industry and Academia to receive insights to receive related to leveraging capabilities to remain at the forefront of innovation, innovative technology adoption, and other strategic challenges that the DoD is currently facing related to innovation with allies and partners.
Pursuant to Federal statutes and regulations (the FACA and 41 CFR 102-3.140 and 102-3.150), the open portion of the meeting will be accessible to the public virtually on January 26, 2024, from 10:00 a.m. to 11:30 a.m. Members of the public wishing to attend the meeting virtually will be able to access a link published on the DIB website the morning of the meeting.
Notice is hereby given that the Delaware River Basin Commission will hold a public hearing on Wednesday, February 7, 2024. A business meeting will be held the following month on Wednesday, March 6, 2024. Both the hearing and the business meeting are open to the public and both will be conducted remotely. Details about the remote platforms for the public hearing and the business meeting will be posted on the Commission's website,
Written comments on matters scheduled for hearing on February 7, 2024 will be accepted through 5:00 p.m. on Monday, February 12, 2024.
The public is advised to check the Commission's website periodically during the ten days prior to the hearing date, as items scheduled for hearing may be postponed if additional time is needed to complete the Commission's review. Items also may be added up to ten days prior to the hearing date. In reviewing docket descriptions, the public is asked to be aware that the details of projects may change during the Commission's review, which is ongoing.
After all scheduled business has been completed and as time allows, the business meeting will be followed by up to one hour of Open Public Comment, an opportunity to address the Commission off the record on any topic concerning management of the basin's water resources outside the context of a duly noticed, on-the-record public hearing.
There will be no opportunity for additional public comment for the record at the March 6, 2024 business meeting on items for which a hearing was completed on February 7, 2024 or a previous date. Commission consideration on March 6, 2024 of items for which the public hearing is closed may result in approval of the item (by docket or resolution) as proposed, approval with changes, denial, or deferral. When the Commissioners defer an action, they may announce an additional period for written comment on the item, with or without an additional hearing date, or they may take additional time to consider the input they have already received without requesting further public input. Any deferred items will be considered for action at a public meeting of the Commission on a future date.
Individuals in need of other accommodations as provided for in the Americans with Disabilities Act who wish to attend the meeting or hearing should contact the Commission Secretary directly at 609-883-9500 ext. 203 or through the Telecommunications Relay Services (TRS) at 711, to discuss how we can accommodate your needs.
Federal Student Aid, Department of Education.
Notice.
The Secretary announces the 2024-25 award year deadline dates for the submission of requests and documents from postsecondary institutions for the Federal Perkins Loan (Perkins Loan) Program, Federal Work-Study (FWS), and Federal Supplemental Educational Opportunity Grant (FSEOG) programs (collectively, the “Campus-Based programs”), Assistance Listing Numbers 84.038, 84.033, and 84.007.
The deadline dates for each program are specified in the chart in the Deadline Dates section of this notice.
Shannon Mahan, Division Chief, Grants
If you are deaf, hard of hearing, or have a speech disability and wish to access telecommunications relay services, please dial 7-1-1.
The authority to award new Federal Perkins Loans to students has expired. Institutions that continue to service their Perkins Loans (or contract with a third-party servicer for servicing) are required to report all Perkins Loan activity on the institution's Fiscal Operations Report and Application to Participate (FISAP).
The FWS program encourages the part-time employment of undergraduate and graduate students with need to help pay for their education and to involve the students in community service activities.
The FSEOG program encourages institutions to provide grants to exceptionally needy undergraduate students to help pay for their education.
The Perkins Loan, FWS, and FSEOG programs are authorized by parts E and C, and part A, subpart 3, respectively, of title IV of the Higher Education Act of 1965, as amended.
Throughout the year, in its “Electronic Announcements,” the Department will continue to provide additional information for the individual deadline dates listed in the table under the Deadline Dates section of this notice. You will also find the information on the Department's Knowledge Center website at:
If you submit paper documents when permitted by mail, we accept as proof one of the following:
(1) A legible mail receipt with the date of mailing stamped by the U.S. Postal Service.
(2) A legibly dated U.S. Postal Service postmark.
(3) A dated shipping label, invoice, or receipt from a commercial courier (FedEx, UPS, etc.).
(4) Any other proof of mailing acceptable to the Secretary.
If you mail your paper documents through the U.S. Postal Service, we do not accept either of the following as proof of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by the U.S. Postal Service.
All institutions are encouraged to use certified or at least first-class mail. Hand-delivery of paper documents is not accepted.
A more detailed discussion of each request for funds or waiver is provided in specific “Electronic Announcements,” which are posted on the Department's Knowledge Center website (
(1) Student Assistance General Provisions, 34 CFR part 668.
(2) General Provisions for the Federal Perkins Loan Program, Federal Work-Study Program, and Federal Supplemental Educational Opportunity Grant Program, 34 CFR part 673.
(3) Federal Perkins Loan Program, 34 CFR part 674.
(4) Federal Work-Study Program, 34 CFR part 675.
(5) Federal Supplemental Educational Opportunity Grant Program, 34 CFR part 676.
(6) Institutional Eligibility Under the Higher Education Act of 1965, as amended, 34 CFR part 600.
(7) New restrictions on Lobbying, 34 CFR part 82.
(8) Governmentwide Requirements for Drug-Free Workplace (Financial Assistance), 34 CFR part 84.
(9) The Office of Management and Budget Guidelines to Agencies on Governmentwide Debarment and Suspension (Nonprocurement) in 2 CFR part 180, as adopted and amended as regulations in 2 CFR part 3485.
(10) Drug and Alcohol Abuse Prevention, 34 CFR part 86.
You may also access documents of the Department published in the
Office of Electricity, Department of Energy.
Notice of open meeting.
This notice announces a meeting of the Electricity Advisory Committee (EAC). The Federal Advisory Committee Act (FACA) requires that public notice of these meetings be announced in the
Tuesday February 13, 2024; 1-5:35 p.m. EST
Wednesday February 14, 2024; 8:30 a.m.-1 p.m. EST
The February meeting of the EAC will be held at the National Rural Electric Cooperative Association Headquarters in Arlington, VA, 4301 Wilson Blvd. Ste 1, Arlington, VA 22203. Members of the public are encouraged to participate virtually, however, limited physical space is available for members of the public to attend onsite. To register to attend either in-person or virtually, please visit the meeting website:
Ms. Jayne Faith, Designated Federal Officer, Office of Electricity, U.S. Department of Energy, Washington, DC 20585; Telephone: (202) 586-2983 or Email:
The meeting agenda and times may change to accommodate EAC business. For EAC agenda updates, see the EAC website at:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene, to protest, or to answer a complaint in any of the above proceedings must file in accordance with Rules 211, 214, or 206 of the Commission's Regulations (18 CFR 385.211, 385.214, or 385.206) 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:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202).
This is a supplemental notice in the above-referenced proceeding of Beaumont ESS, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is February 6, 2024.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street, NE, Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
User assistance is available for eLibrary and the Commission's website during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202)502-6595 or
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380, the Office of Energy Projects has reviewed the application for a new license to continue to operate and maintain the Grand Rapids Hydroelectric Project (project). The project is located on the Mississippi River in Itasca County, Minnesota. Commission staff has prepared an Environmental Assessment (EA) for the project.
The EA contains the staff's analysis of the potential environmental impacts of the project and concludes that licensing the project, with appropriate environmental protective measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
The Commission provides all interested persons with an opportunity to view and/or print the EA via the internet through the Commission's Home Page (
You may also register online at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202)502-6595, or
Any comments should be filed within 45 days from the date of this notice.
The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at
For further information, contact Laura Washington at 202-502-6072 or
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene, to protest, or to answer a complaint in any of the above proceedings must file in accordance with Rules 211, 214, or 206 of the Commission's Regulations (18 CFR 385.211, 385.214, or 385.206) 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. The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes.
For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
The license for the Shenandoah Hydroelectric Project No. 2509 was issued for a period ending December 31, 2023.
Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year-to-year an annual license to the then licensee(s) under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a project has not filed an application for a subsequent license, then it may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the Commission issues someone else a license for the project or otherwise orders disposition of the project.
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 2509 is issued to PE Hydro Generation, LLC for a period effective January 1, 2024, through December 31, 2024, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before December 31, 2024, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that PE Hydro Generation, LLC is authorized to continue operation of the Shenandoah Hydroelectric Project under the terms and conditions of the prior license until the issuance of a subsequent license for the project or other disposition under the FPA, whichever comes first.
On December 27, 2021, Hydro Technology, Inc filed an application for a subsequent license to continue operating the existing 1,200-kilowatt Meyers Falls Hydroelectric Project No. 2544 (Meyers Falls Project or project). The project is located on the Colville River in Stevens County, Washington. The project does not occupy federal land.
In accordance with the Commission's regulations, on March 28, 2023,
The EA will be issued and circulated for review by all interested parties. All comments filed on the EA will be analyzed by staff and considered in the Commission's final licensing decision.
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
By this notice, Commission staff is updating the procedural schedule for completing the EA. The revised schedule is shown below. Further revisions to the schedule may be made as appropriate.
Any questions regarding this notice may be directed to Maryam Zavareh at (202) 502-8474 or
The license for the Warren Hydroelectric Project No. 2391 was issued for a period ending December 31, 2023.
Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year-to-year an annual license to the then licensee(s) under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms and conditions of the license after the minor or minor part license expires, until the Commission acts on its application. If the licensee of such a project has not filed an application for a subsequent license, then it may be required, pursuant to 18 CFR 16.21(b), to continue project operations until the Commission issues someone else a license for the project or otherwise orders disposition of the project.
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 2391 is issued to PE Hydro Generation, LLC for a period effective January 1, 2024, through December 31, 2024, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before December 31, 2024, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that PE Hydro Generation, LLC is authorized to continue operation of the Warren Hydroelectric Project under the terms and conditions of the prior license until the issuance of a subsequent license for the project or other disposition under the FPA, whichever comes first.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following Complaints and Compliance filings in EL Dockets:
EL24-55-000.
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following qualifying facility filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene, to protest, or to answer a complaint in any of the above proceedings must file in accordance with Rules 211, 214, or 206 of the Commission's Regulations (18 CFR 385.211, 385.214, or 385.206) 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:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380, the Office of Energy Projects has reviewed the application for a subsequent license to continue to operate and maintain the Prairie River Hydroelectric Project (project). The project is located on the Prairie River in Itasca County, Minnesota. Commission staff has prepared an Environmental Assessment (EA) for the project.
The EA contains the staff's analysis of the potential environmental impacts of the project and concludes that licensing the project, with appropriate environmental protective measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
The Commission provides all interested persons with an opportunity to view and/or print the EA via the internet through the Commission's Home Page (
You may also register online at
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202)502-6595, or
Any comments should be filed within 45 days from the date of this notice.
The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at
For further information, contact Laura Washington at 202-502-6072 or
The license for the Luray and Newport Hydroelectric Project No. 2425 was issued for a period ending December 31, 2023.
Section 15(a)(1) of the FPA, 16 U.S.C. 808(a)(1), requires the Commission, at the expiration of a license term, to issue from year-to-year an annual license to the then licensee(s) under the terms and conditions of the prior license until a new license is issued, or the project is otherwise disposed of as provided in section 15 or any other applicable section of the FPA. If the project's prior license waived the applicability of section 15 of the FPA, then, based on section 9(b) of the Administrative Procedure Act, 5 U.S.C. 558(c), and as set forth at 18 CFR 16.21(a), if the licensee of such project has filed an application for a subsequent license, the licensee may continue to operate the project in accordance with the terms
If the project is subject to section 15 of the FPA, notice is hereby given that an annual license for Project No. 2425 is issued to PE Hydro Generation, LLC for a period effective January 1, 2024, through December 31, 2024, or until the issuance of a new license for the project or other disposition under the FPA, whichever comes first. If issuance of a new license (or other disposition) does not take place on or before December 31, 2024, notice is hereby given that, pursuant to 18 CFR 16.18(c), an annual license under section 15(a)(1) of the FPA is renewed automatically without further order or notice by the Commission, unless the Commission orders otherwise.
If the project is not subject to section 15 of the FPA, notice is hereby given that PE Hydro Generation, LLC is authorized to continue operation of the Luray and Newport Hydroelectric Project under the terms and conditions of the prior license until the issuance of a subsequent license for the project or other disposition under the FPA, whichever comes first.
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system (
Any person desiring to intervene, to protest, or to answer a complaint in any of the above proceedings must file in accordance with Rules 211, 214, or 206 of the Commission's Regulations (18 CFR 385.211, 385.214, or 385.206) 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:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene, to protest, or to answer a complaint in any of the above proceedings must file in accordance with Rules 211, 214, or 206 of the Commission's Regulations (18 CFR 385.211, 385.214, or 385.206) 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.
The filings are accessible in the Commission's eLibrary system (
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
On November 2, 2023, MountainWest Overthrust Pipeline, LLC (Overthrust) filed an application in Docket No. CP24-13-000 requesting a Certificate of Public Convenience and Necessity pursuant to Section 7(c) of the Natural Gas Act to construct and operate certain natural gas pipeline facilities. The proposed project is known as the Westbound Compression Expansion Project (Project), which would expand Overthrust's natural gas transmission system at its existing Point of Rocks and Rock Springs Compressor Stations in Sweetwater County, Wyoming, as well as related aboveground facilities in Uinta and Lincoln Counties, Wyoming. The Project would provide an additional 325,000 dekatherms per day (Dth/d) of year-round firm transportation capacity on its existing mainline to western and northwestern U.S. gas markets.
On November 15, 2023, the Federal Energy Regulatory Commission (Commission or FERC) issued its Notice of Application for the Project. Among other things, that notice alerted agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on a request for a federal authorization within 90 days of the date of issuance of the Commission staff's environmental document for the Project.
This notice identifies Commission staff's intention to prepare an environmental assessment (EA) for the Project and the planned schedule for the completion of the environmental review.
If a schedule change becomes necessary, additional notice will be provided so that the relevant agencies
The Project would provide an expansion of Overthrust's existing pipeline system that would enable Overthrust to provide an additional 325,000 Dth/d of westbound firm transportation capacity to a new delivery point being constructed by Kern River Gas Transmission near Overthrust's existing Roberson Compressor Station in Lincoln County, Wyoming.
The Project would consist of the following facilities and activities, all in Wyoming:
• addition of one gas-fired turbine driven compressor unit with 15,900 nominal horsepower (hp) at the existing Point of Rocks Compressor Station in Sweetwater County;
• addition of one gas-fired turbine driven compressor unit with 15,900 nominal hp at the existing Rock Springs Compressor Station in Sweetwater County;
• an approximate 1,400-foot-long, 24-inch-diameter pipe interconnect (JTL-148) extending from a new tap on Overthrust's mainline 122 at its existing North Rendezvous Tap facility to a new meter station being constructed by Kern River Gas Transmission at an existing site in Lincoln County;
• upgrades to the existing Rockies Express Pipeline Wamsutter Meter Station to accommodate additional gas volumes in Sweetwater County;
• upgrades at three existing facilities—Roberson Compressor Station (new pig launcher and receiver
• modifications to Overthrust's existing Granger Interconnect Facility to accommodate new flow conditions in Sweetwater County.
On December 14, 2023, the Commission issued a
Portions of the Project would affect lands that Overthrust has leased from the Bureau of Land Management; therefore, the Bureau of Land Management is a cooperating agency in the preparation of the EA.
In order to receive notification of the issuance of the EA and to keep track of formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This service provides automatic notification of filings made to subscribed dockets, document summaries, and direct links to the documents. Go to
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202)502-6595 or
Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (
The eLibrary link on the FERC website also provides access to the texts of formal documents issued by the Commission, such as orders, notices, and rule makings.
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 proceeding in accordance with Rule 2010, 18 CFR 385.2010.
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. This filing may be viewed on the Commission's website at
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission strongly encourages electronic filing. Please file comments, recommendations, terms and conditions, and prescriptions using the Commission's eFiling system at
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. This application has been accepted for filing and is now ready for environmental analysis.
l.
From the impoundment, water flows through the intake structure to a 130-foot-long, 65-foot-wide concrete powerhouse that contains two 3.1-megawatt (MW) Kaplan turbine-generator units, for a total installed capacity of 6.2 MW. Water is discharged from the turbines to an approximately 250-foot-long, 160-foot-wide tailrace.
The project generators are connected to the regional electric grid by: (1) a 265-foot-long, 4.16-kilovolt (kV) above-ground generator lead line; (2) a 4.16/12.47-kV step-up transformer approximately 200 feet west of the powerhouse; and (3) a 1,442-foot-long, 12.47-kV transmission line that connects to a non-project substation, and that includes a 1,059-foot-long above-ground segment and a 383-foot-long underground segment. The project includes a 10-foot-long, 7.2-foot-wide electrical control building located at the south side of the 182-foot-long section of the dam.
The minimum and maximum hydraulic capacities of the powerhouse are 715 and 5,400 cubic feet per second, respectively. The average annual energy production of the Combined Locks Project from 2014 through 2020 was 42,744 megawatt-hours.
The current license requires Kaukauna to minimize impoundment fluctuations by operating the project in a run-of-river mode, such that project outflow approximates the “instantaneous sum of all inflow.” Kaukauna maintains the surface elevation of the impoundment between 675.74 and 677.79 feet IGLD 85.
Kaukauna proposes to continue operating the project in a run-of-river mode and maintaining the surface elevation of the impoundment between 675.74 and 677.79 feet IGLD 85. Kaukauna also proposes to: (1) continue to dispose of large woody debris and trash collected from the trashracks; (2) implement invasive species monitoring every 2 years, and manage species categorized as “prohibited” by the Wisconsin Department of Natural Resources if observed in the project boundary; and (3) evaluate the project dam for National Register of Historic Places eligibility.
m. A copy of the application can be viewed on the Commission's website at
All filings must (1) bear in all capital letters the title “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,” “TERMS AND CONDITIONS,” or “PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person submitting the filing; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. Each filing must be accompanied by proof of service on all persons listed on the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
The Commission's Office of Public Participation (OPP) supports meaningful public engagement and participation in Commission proceedings. OPP can help members of the public, including landowners, environmental justice communities, Tribal members and others, access publicly available information and navigate Commission processes. For public inquiries and assistance with making filings such as interventions, comments, or requests for rehearing, the public is encouraged to contact OPP at (202) 502-6595 or
You may also register online at
n.
o.
This is a supplemental notice in the above-referenced proceeding of Placerita ESS, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is February 6, 2024.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically may mail similar pleadings to the Federal Energy Regulatory Commission, 888 First Street NE Washington, DC 20426. Hand delivered submissions in docketed proceedings should be delivered to Health and Human Services, 12225 Wilkins Avenue, Rockville, Maryland 20852.
In addition to publishing the full text of this document in the
User assistance is available for eLibrary and the Commission's website during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at
The Commission's Office of Public Participation (OPP) supports meaningful
Environmental Protection Agency (EPA).
Notice.
This notice announces that information submitted to EPA's Office of Air and Radiation, Office of Transportation and Air Quality, pursuant to the Clean Air Act, including information that may be claimed as Confidential Business Information (CBI) by the submitter, will be transferred to the United States Energy Information Administration (EIA), a Federal agency pursuant to a written Information Sharing Agreement between EPA and EIA.
Access by EIA to this material, including CBI, discussed in this Notice, is ongoing and expected to occur beginning February 2, 2024.
Anne-Marie Pastorkovich, Attorney/Advisor, Compliance Division, Office of Transportation and Air Quality; telephone number: 202-343-9623; email address:
EPA is providing notice of disclosure under a written Information Sharing Agreement with EIA and in accordance with 40 CFR 2.209(c). EPA and EIA have entered an Information Sharing Agreement that will remain in effect until December 19, 2028, unless terminated earlier by either party or both parties.
EPA collects various data on conventional and renewable fuels, including registration and compliance information, to implement the Renewable Fuel Standard (RFS) program and other fuels programs under section 211(o) of the Clean Air Act. This includes collecting information from submitter companies about their facilities, products, and generation and use of renewable identification numbers (RINs). These data may be claimed as CBI by the submitter.
EIA is the statistical and analytical agency of the U.S. Department of Energy (DOE). EIA collects, analyzes, and disseminates independent and impartial energy information to promote sound policymaking, efficient markets, and public understanding of energy and its interaction with the economy and the environment.
The Information Sharing Agreement covers information collected by EPA related to fuels, fuel additives, and regulated blendstocks under 40 CFR part 1090 and renewable fuels under 40 CFR part 80. The data include information about company and facility registrations, fuels compliance reporting, and transactional reporting (
Notice of an Open Meeting of the Board of Directors of the Export-Import Bank of the United States.
Thursday, January 25, 2024, at 10:30 a.m.
The meeting will be held via teleconference.
The meeting will be open to public observation.
Dana Jackson (202-329-2052;
89 FR 3402.
Tuesday, January 23, 2024, at 1:00 p.m. and its continuation at the conclusion of the open meeting on January 25, 2024.
The meeting will begin at 10:00 a.m. on January 23, 2024.
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Appraisal Subcommittee of the Federal Financial Institutions Examination Council.
Notice of special meeting.
In accordance with Section 1104(b) of Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended, notice is hereby given that the Appraisal Subcommittee (ASC) met for a Special Meeting on this date.
The ASC convened a Special Meeting to vote on the above-referenced items. The vote for each item passed 7-0.
Appraisal Subcommittee of the Federal Financial Institutions Examination Council.
Notice of special closed meeting.
In accordance with section 1104(b) of title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended, notice is hereby given that the Appraisal Subcommittee (ASC) met for a Special Closed Meeting on this date.
The ASC convened a Special Closed Meeting to discuss a personnel matter. No action was taken by the ASC.
The notificants listed below have applied under the Change in Bank Control Act (Act) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the applications are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The public portions of the applications listed below, as well as other related filings required by the Board, if any, are available for immediate inspection at the Federal Reserve Bank(s) indicated below and at the offices of the Board of Governors. This information may also be obtained on an expedited basis, upon request, by contacting the appropriate Federal Reserve Bank and from the Board's Freedom of Information Office at
Comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors, Ann E. Misback, Secretary of the Board, 20th Street and Constitution Avenue NW, Washington, DC 20551-0001, not later than February 6, 2024.
A. Federal Reserve Bank of Chicago (Colette A. Fried, Assistant Vice President) 230 South LaSalle Street, Chicago, Illinois 60690-1414. Comments can also be sent electronically to
1.
Board of Governors of the Federal Reserve System.
Federal Trade Commission.
Proposed consent agreement; request for comment.
The consent agreement in this matter settles alleged violations of federal law prohibiting unfair or deceptive acts or practices. The attached Analysis of Proposed Consent Order to Aid Public Comment describes both the allegations in the complaint and the terms of the consent order—embodied in the consent agreement—that would settle these allegations.
Comments must be received on or before February 22, 2024.
Interested parties may file comments online or on paper by following the instructions in the Request for Comment part of the
Gorana Neskovic (202-326-2322), Attorney, Division of Privacy and Identity Protection, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Ave. NW, Washington, DC 20580.
Pursuant to Section 6(f) of the Federal Trade Commission Act, 15 U.S.C. 46(f), and FTC Rule § 2.34, 16 CFR 2.34, notice is hereby given that the above-captioned consent agreement containing a consent order to cease and desist, having been filed with and accepted, subject to final approval, by the Commission, has been placed on the public record for a period of 30 days. The following Analysis to Aid Public Comment describes the terms of the consent agreement and the allegations in the complaint. An electronic copy of the full text of the consent agreement package can be obtained at
You can file a comment online or on paper. For the Commission to consider your comment, we must receive it on or
Because of heightened security screening, postal mail addressed to the Commission will be subject to delay. We strongly encourage you to submit your comments online through the
Because your comment will be placed on the publicly accessible website at
Comments containing material for which confidential treatment is requested must be filed in paper form, must be clearly labeled “Confidential,” and must comply with FTC Rule § 4.9©. In particular, the written request for confidential treatment that accompanies the comment must include the factual and legal basis for the request and must identify the specific portions of the comment to be withheld from the public record.
Visit the FTC website at
The Federal Trade Commission (“Commission”) has accepted, subject to final approval, an agreement containing a consent order from InMarket Media LLC (“InMarket”). The proposed consent order (“Proposed Order”) has been placed on the public record for 30 days for receipt of public comments from interested persons. Comments received during this period will become part of the public record. After 30 days, the Commission will again review the agreement, along with the comments received, and will decide whether it should make final the Proposed Order or withdraw from the agreement and take appropriate action.
Respondent InMarket is a Delaware company with its headquarters in Texas. Respondent is a digital marketing platform and a data aggregator. Since approximately May 2010, InMarket has operated an advertising service that uses mobile device location data to deliver ads to consumers' mobile devices.
InMarket collects and purchases mobile device location data and uses that data to allow advertisers to target particular groups of consumers. InMarket collects location data directly from mobile devices through its proprietary software development kit (“the InMarket SDK”). The InMarket SDK is incorporated into two mobile apps that InMarket owns and operates: CheckPoints, which offers shopping rewards for completing small tasks, and ListEase, which helps consumers create shopping lists. Respondent also makes the InMarket SDK available to third-party app developers and it has been incorporated into more than 300 third-party apps.
InMarket uses the location data and other personal information it collects to group consumers, identified by mobile device identifiers, into advertising audiences, and then allows advertisers to target these audiences (
When InMarket's proprietary apps request consent to access location data, they state that the data will be used for the app's own function (
In addition to failing to obtain informed consent, InMarket has retained the collected data for up to five years—far longer than necessary to accomplish the purpose of collection. This unreasonable retention period, combined with InMarket's comprehensive data collection practices, significantly increases the risk that the sensitive location data would be disclosed or misused, causing harm to consumers.
The Commission's proposed four-count complaint alleges that Respondent violated section 5(a) of the FTC Act by (1) unfairly collecting and using consumer location data from its own apps, (2) unfairly collecting and using consumer location data from third party apps, (3) unfairly retaining consumer location data, and (4) deceptively failing to disclose use of location data.
With respect to the first count, the proposed complaint alleges that Respondent failed to fully disclose to users of the InMarket apps the purposes for which the users' location data would
With respect to the second count, the proposed complaint alleges Respondent collected location data from third-party apps that incorporate its SDK without taking reasonable steps to verify that the consumers were informed that their data would be shared with InMarket and used to develop consumer profiles to target them with advertising. The proposed complaint alleges that this collection of location data without consent verification caused substantial injury to consumers in the form of loss of privacy about their day-to-day movements, and a related increased risk of disclosure of such sensitive data. InMarket's primary mechanism for ensuring that consumers have provided appropriate consent is through contractual requirements with its third-party app partners. However, contractual provisions, without additional safeguards, are insufficient to protect consumers' privacy.
With respect to the third count, the proposed complaint alleges that Respondent retained detailed, sensitive information about consumers' movement for up to five years, which is longer than reasonably necessary to fulfill the purpose for which that information was collected. As a result, the proposed complaint alleges that such retention caused or is likely to cause substantial injury in the form of loss of privacy about day-to-day movements of consumers, and an increased risk of disclosure of such sensitive data.
With respect to the fourth count, the proposed complaint alleges that Respondent failed to inform consumers about its location data use practices. Respondent represented that its apps would use the user's location information for shopping-related activities such as earning extra points when walking into stores. Instead, InMarket has supplemented that data with information about users it purchased from other sources, shared that information with third parties for advertising purposes, and has used that information to develop predictions about consumer behavior and characteristics. The proposed complaint alleges that these facts would be material to consumers when deciding whether to grant location permissions to InMarket's apps, and their omission was therefore a deceptive act or practice.
The Proposed Order contains injunctive relief designed to prevent Respondent from engaging in the same or similar acts or practices in the future.
Geolocation data can vary significantly in its precision. The privacy concerns posed by the proposed complaint relate to more precise location data—that is, location data that could be used to identify specific locations a consumer visits. As a result, the Proposed Order is limited to location data that identifies consumers' locations in a geographic area that is equal to or less than the area of a circle with a radius of 1,850 feet.
Provision I prohibits Respondent from misrepresenting (1) the extent to which it collects, maintains, uses, discloses, or deletes location data, and (2) the extent to which such data is deidentified. Provision II prohibits Respondent from selling or licensing precise location data in exchange for any valuable consideration.
Provision III prohibits Respondent from selling, licensing, transferring, or sharing, any product or service that categorizes or targets consumers based on sensitive location data. Sensitive locations are defined as those locations associated with: (1) sexual and reproductive health providers, offices of mental health practitioners and related mental health and substance abuse facilities, offices of oncologists and pediatricians; (2) religious organizations; (3) correctional facilities; (4) labor union offices; (5) locations held out to the public as predominantly providing education or childcare services to minors; (6) locations held out to the public as predominantly providing services to LGBTQ+ individuals; (7) locations held out to the public as predominantly providing services based on racial or ethnic origin; (8) locations held out to the public as providing temporary shelter or social services to homeless, survivors of domestic violence, refugees, or immigrants; or (9) locations of public gatherings of individuals during political or social demonstrations, marches and protests.
Provision IV requires that Respondent implement and maintain a sensitive location data program to develop a comprehensive list of sensitive locations and to prevent the use, sale, license, transfer, or disclosure of sensitive location data.
Provision V prohibits Respondent from collecting, using, and disclosing location data from its apps (1) without a record documenting the consumer's affirmative express consent obtained prior to the collection or use of location data, and (2) unless consumers receive a clear and conspicuous reminder every six months about location data being collected.
Provision VI requires that Respondent design and implement an SDK supplier assessment program to help ensure that consumers have provided consent for the collection and use of location data obtained by Respondent through its SDK. Under this program, Respondent must conduct initial assessments of all their SDK data suppliers within 30 days of entering into a data sharing agreement, or within 30 days of the initial date of data collection. The program also requires that Respondent confirm that consumers provide consent and create and maintain records of SDK suppliers' assessment responses. Finally, Respondent must cease from using, selling, or disclosing location data for which consumers do not provide consent.
Provision VII requires that Respondent provide a simple, easily-located means for consumers to withdraw any consent provided and Provision VIII requires that Respondent cease collecting location data within 7 days after Respondent receives notice that the consumer has withdrawn their consent. Provision IX also requires Respondent to provide a simple, easily-located means for consumers to request that Respondent deletes location data that Respondent previously collected and to delete the location data within 30 days of receipt of such request unless a shorter period for deletion is required by law.
Provision X requires that Respondent (1) document and adhere to a retention schedule for the covered information it collects from consumers, including the purposes for which it collects such information, the specific business needs, and an established timeframe for its deletion, and (2) prior to collecting or using new type of information related to consumers that was not previously collected, and is not described in its retention schedule, update its retention schedule.
Provision XI requires Respondent to provide a notice to each consumer whose location data was collected through the Respondent's apps without Affirmative Express Consent, either via email or in the app itself, notifying the consumer about InMarket's settlement with the Commission.
Provision XII requires that Respondent delete or destroy all historic location data. Respondent has the
Provisions XIV-XVII are reporting and compliance provisions, which include recordkeeping requirements and provisions requiring Respondent to provide information or documents necessary for the Commission to monitor compliance.
Provision XVIII states that the Proposed Order will remain in effect for 20 years, with certain exceptions.
The purpose of this analysis is to facilitate public comment on the Proposed Order, and it is not intended to constitute an official interpretation of the complaint or Proposed Order, or to modify the Proposed Order's terms in any way.
By direction of the Commission.
Centers for Disease Control and Prevention, Department of Health and Human Services (HHS).
Notice.
In accordance with the Federal Advisory Committee Act, the Centers for Disease Control and Prevention (CDC) announces an amendment to the following meeting for the Board of Scientific Counselors, National Center for Injury Prevention and Control (BSC, NCIPC).
Notice is hereby given of a change in the meeting of Board of Scientific Counselors, National Center for Injury Prevention and Control; January 11, 2024, first session from 10 a.m. to 12:05 p.m., EST (OPEN), and second session from 1 p.m. to 4:30 p.m., EST (CLOSED), in the original
The notice of the virtual meeting was published in the
The meeting notice is being amended. The closed session that was scheduled for January 11, 2024, from 1 p.m. to 4:30 p.m., EST, has been canceled. The notice is being amended to update the
In accordance with the Federal Advisory Committee Act, the Centers for Disease Control and Prevention (CDC) announces the following meeting for the Board of Scientific Counselors, National Center for Injury Prevention and Control (BSC, NCIPC). This meeting is open to the public. Time will be available for public comment.
The meeting will be held on January 11, 2024, from 10 a.m. to 12:05 p.m., EST. The public comment period will be from 11:45 a.m. to 12 p.m., EST.
Webinar, Atlanta, Georgia. All participants must register by using the following link to attend the meeting:
Christopher R. Harper, Ph.D., Designated Federal Officer, Board of Scientific Counselors, National Center for Injury Prevention and Control, Centers for Disease Control and Prevention, 4770 Buford Highway NE, Mailstop S-1069, Atlanta, Georgia 30341. Telephone: (404) 718-8330; Email:
The Director, Office of Strategic Business Initiatives, Office of the Chief Operating Officer, Centers for Disease Control and Prevention, has been delegated the authority to sign
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 continuing information collection, as required by the Paperwork Reduction
CDC must receive written comments on or before March 25, 2024.
You may submit comments, identified by Docket No. CDC-2024-0002 by either 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 H21-8, Atlanta, Georgia 30329; Telephone: 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;
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 Clearance for the Collection of Qualitative Feedback on Agency Service Delivery (OMB Control No. 0920-1071, Exp. 5/31/2024)—Extension—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
CDC/NCEZID is seeking a three-year Extension of OMB Control No. 0920-1071 to continue collecting routine customer feedback on agency service delivery. Executive Order 12862 directs Federal agencies to provide service to the public that matches or exceeds the best service available in the private sector. In order to work continuously to ensure that our programs are effective and meet our customers' needs, the National Center for Emerging and Zoonotic Infectious Diseases, Centers for Disease Control and Prevention (CDC) (hereafter the Agency) seeks to obtain OMB approval of a Generic Clearance to collect qualitative feedback on our service delivery. By qualitative feedback we mean information that provides useful insights on perceptions and opinions, but are not statistical surveys that yield quantitative results that can be generalized to the population of study.
This collection of information is necessary to enable the Agency to garner customer and stakeholder feedback in an efficient, timely manner, in accordance with our commitment to improving service delivery. The information collected from our customers and stakeholders will help ensure that users have an effective, efficient, and satisfying experience with the Agency's programs. This feedback will provide insights into customer or stakeholder perceptions, experiences and expectations, provide an early warning of issues with service, or focus attention on areas where communication, training or changes in operations might improve delivery of products or services. These collections will allow for ongoing, collaborative and actionable communications between the Agency and its customers and stakeholders. It will also allow feedback to contribute directly to the improvement of program management.
Since getting approval in May 2021, NCEZID has utilized the 0920-1071 mechanism 15 separate times. In this Extension, CDC requests OMB approval for an estimated 3,850 annual burden hours. There is no cost to respondents other than the time to participate.
Administration for Children and Families, U.S. Department of Health and Human Services.
Request for public comments.
The Administration for Children and Families (ACF) proposes to extend approval of the existing overarching generic clearance for Financial Reports used for ACF Mandatory Grant Programs (OMB #0970-0510) as well as all information collections currently approved under the overarching generic. There are no changes to the proposed types of information collection or uses of data as described in the overarching generic, and there are no changes proposed to currently approved information collections for which we are requesting an extension. Burden estimates for the next 3 years have been adjusted based on use to date.
You can obtain copies of the proposed collection of information and submit comments by emailing
The information included on the standard Federal Financial Report Form (SF-425; OMB #4040-0014) provides only minimal, bare-bones, non-program specific financial information insufficient for these purposes. This generic clearance allows ACF programs to efficiently develop and receive approval for financial reports that are tailored to specific funding recipients and the associated needs of the program. This umbrella generic is a mechanism that is available to all ACF mandatory grant programs to use to obtain OMB approval of financial forms. Currently only a small number of ACF's mandatory grant program financial forms are covered under this umbrella; it does
ACF may require an information collection approved under this generic from funding recipients to obtain or retain benefits.
Prior to a new form being submitted for review under this umbrella generic, ACF will publish a notice in the
Find currently approved information collections here:
Based on use of this generic, we have revised burden estimates for the next 3 years.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the issuance of approval of a product redeeming a priority review voucher. The Federal Food, Drug, and Cosmetic Act (FD&C Act) authorizes FDA to award priority review vouchers to sponsors of approved rare pediatric disease product applications that meet certain criteria. FDA is required to publish notice of the issuance of priority review vouchers as well as the approval of products redeeming a priority review voucher. FDA has determined that the supplemental application (Supplement-35) for COSENTYX (secukinumab), approved June 16, 2020, meets the criteria for redeeming a priority review voucher.
Cathryn Lee, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 301-796-1394, email:
FDA is announcing the approval of a product redeeming a rare pediatric disease priority review voucher. Under section 529 of the FD&C Act (21 U.S.C. 360ff), FDA will report the issuance of rare pediatric disease priority review vouchers and the approval of products for which a voucher was redeemed. FDA has determined that the supplemental application (Supplement-35) for COSENTYX (secukinumab) meets the redemption criteria.
For further information about the Rare Pediatric Disease Priority Review Voucher Program and for a link to the full text of section 529 of the FD&C Act, go to
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or Agency) is announcing the availability of the draft guidance entitled “Characterization of Metallic Coatings and/or Calcium Phosphate Coatings on Orthopedic Devices.” This draft guidance document provides recommendations for premarket submissions for orthopedic devices that contain metallic coatings and/or calcium phosphate coatings on the surface. This draft guidance is not final nor is it for implementation at this time.
Submit either electronic or written comments on the draft guidance by March 25, 2024 to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
An electronic copy of the guidance document is available for download from the internet. See the
Limin Sun, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 4430, Silver Spring, MD 20993-0002, 301-796-7056.
This draft guidance document provides recommendations for premarket submissions for orthopedic devices that contain metallic coatings and/or calcium phosphate coatings on the surface. The recommendations in this document are applicable to class II and class III devices intended for orthopedic applications that contain metallic and/or calcium phosphate coatings. Specifically, this draft guidance addresses the characterization of the following coatings on orthopedic devices: (1) a metallic coating, which can be manufactured using thermal spray (
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on “Characterization of Metallic Coatings and/or Calcium Phosphate Coatings on Orthopedic Devices.” It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
Persons interested in obtaining a copy of the draft guidance may do so by downloading an electronic copy from the internet. A search capability for all Center for Devices and Radiological Health guidance documents is available at
While this guidance contains no new collection of information, it does refer to previously approved FDA collections of information. The previously approved collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3521). The collections of information in the following table have been approved by OMB:
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the issuance of approval of a product redeeming a priority review voucher. The Federal Food, Drug, and Cosmetic Act (FD&C Act) authorizes FDA to award priority review vouchers to sponsors of approved rare pediatric disease product applications that meet certain criteria. FDA is required to publish notice of the issuance of priority review vouchers as well as the approval of products redeeming a priority review voucher. FDA has determined that the supplemental application (Supplement-1) for ZEPOSIA (ozanimod), approved May 27, 2021, meets the criteria for redeeming a priority review voucher.
Cathryn Lee, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 301-796-1394, email:
FDA is announcing the approval of a product redeeming a rare pediatric disease priority review voucher. Under section 529 of the FD&C Act (21 U.S.C. 360ff), FDA will report the issuance of rare pediatric disease priority review vouchers and the approval of products for which a voucher was redeemed. FDA has determined that the supplemental application (Supplement-1) for ZEPOSIA (ozanimod) meets the redemption criteria.
For further information about the Rare Pediatric Disease Priority Review Voucher Program and for a link to the full text of section 529 of the FD&C Act, go to
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, Agency, or we) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal agencies are required to publish notice in the
Either electronic or written comments on the collection of information must be submitted by March 25, 2024.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. 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. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Section 403(r)(3)(A) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 343(r)(3)(A)) provides for the use of food label statements characterizing a relationship of any nutrient of the type required to be in the label or labeling of the food to a disease or a health-related condition only where that statement meets the requirements of the regulations issued by the Secretary of Health and Human Services to authorize the use of such a health claim. Section 101.82 (21 CFR 101.82) of our regulations authorizes a health claim for food labels about soy protein and the risk of CHD. Accordingly, we established this information collection in support of the regulation.
This information collection enables us to review food labeling ingredient information to determine the basis of soy protein/CHD health claims. Respondents are required to retain records for FDA inspection regarding calculation of the ratio of soy protein to total protein in a food when that food bears a soy protein/CHD health claim.
While we are currently proposing to revoke the regulation (RIN 0910-AH43) as announced in the
We estimate the burden of this collection of information as follows:
The records currently required to be retained under § 101.82(c)(2)(ii)(B) are the records,
Based on a review of the information collection since our last request for OMB approval, we have made no adjustments to our burden estimate.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, Agency, us, or we) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal agencies are required to publish notice in the
Either electronic or written comments on the collection of information must be submitted by March 25, 2024.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. 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. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
This information collection supports FDA regulations. Under sections 201(s) and 409 of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321(s) and 348), food irradiation is subject to regulation by FDA under the food additive premarket approval provisions. The regulations providing for uses of irradiation in the production, processing, and handling of food are found in part 179 (21 CFR part 179). To ensure safe use of a radiation source, § 179.21(b)(1) requires that the label of sources bear appropriate and accurate information identifying the source of radiation and the maximum (or minimum and maximum) energy of the emitted radiation. Section 179.21(b)(2) requires that the label or accompanying labeling bear adequate directions for installation and use and a statement supplied by us that indicates maximum dose of radiation allowed. Section 179.26(c) requires that the label or accompanying labeling bear a logo and a radiation disclosure statement. Section 179.25(e) requires that food processors who treat food with radiation make and retain, for 1 year past the expected shelf life of the products up to a maximum of 3 years, specified records relating to the irradiation process (
We estimate the burden of this collection of information as follows:
Based on a review of the information collection since our last request for OMB approval, we have made no adjustments to our burden estimate. Our estimate of the recordkeeping burden under § 179.25(e) is based on our experience regulating the safe use of radiation as a direct food additive. The number of firms who process food using irradiation is extremely limited. We estimate that there are four irradiation plants whose business is devoted primarily (
No burden has been estimated for the labeling requirements in §§ 179.21(b)(1), 179.21(b)(2), and 179.26(c) because the disclosures are supplied by FDA. Under 5 CFR 1320.3(c)(2), the public disclosure of information originally supplied by the Federal Government to the recipient for the purpose of disclosure to the public is not subject to review by OMB under the PRA.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is publishing a list of information collections that have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995.
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,
The following is a list of FDA information collections recently approved by OMB under section 3507 of the Paperwork Reduction Act of 1995 (44 U.S.C. 3507). The OMB control number and expiration date of OMB approval for each information collection are shown in table 1. Copies of the supporting statements for the information collections are available on the internet at
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or we) 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.
Submit written comments (including recommendations) on the collection of information by February 22, 2024.
To ensure that comments on the information collection are received, OMB recommends that written comments be submitted to
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
This information collection supports our regulations in part 315 (21 CFR part 315) that require manufacturers of diagnostic radiopharmaceuticals to submit information that demonstrates the safety and effectiveness of (1) a new diagnostic radiopharmaceutical or (2) a new indication for use of an approved diagnostic radiopharmaceutical. Information about the safety or effectiveness of a diagnostic radiopharmaceutical enables FDA to evaluate properly the safety and effectiveness profiles of such radiopharmaceuticals.
The information, which is usually submitted as part of a new drug application (NDA) or biologics license application or as a supplement to an approved application typically includes, but is not limited to, nonclinical and clinical data on the pharmacology; toxicology; adverse events; radiation safety assessments; and chemistry, manufacturing, and controls. The content and format of an application for approval of a new drug are set forth in § 314.50 (21 CFR 314.50) and have been approved under OMB control number 0910-0001.
In table 1, row 1, we estimate the annual reporting burden for preparing the safety and effectiveness sections of an application. This estimate does not include the time needed to conduct studies and clinical trials or other research from which the reported information is obtained.
Based on past submissions of human drug applications, new indication supplements for diagnostic radiopharmaceuticals, or both, we estimate that three submissions will be received annually from three applicants and that 2,000 hours would be spent preparing the portions of the application that would be affected by this
In table 1, row 2, we estimate the annual reporting burden for preparing the safety and effectiveness sections of a supplement to an approved application. This estimate does not include the time needed to conduct studies and clinical trials or other research from which the reported information is obtained.
Based on past submissions of human drug applications, new indication supplements for diagnostic radiopharmaceuticals, or both, we estimate that one submission will be received annually. We estimate the total time needed to prepare complete applications for supplements to new applications for diagnostic radiopharmaceuticals as approximately between 500 and 1,000 hours. We calculated the median of this estimate to arrive at approximately 750 hours. We further estimate that the total time needed to prepare the portions of the application that would be affected by this information collection as 750 hours. As previously stated, this information collection does not impose any additional reporting burden for safety and effectiveness information on diagnostic radiopharmaceuticals beyond the estimated burden of 750 hours because safety and effectiveness information is already required in § 314.50 and has been approved under OMB control number 0910-0001.
In the
FDA estimates the burden of this collection of information as follows:
Our estimated burden for the information collection reflects an overall decrease of 11 responses with a corresponding decrease of 12,000 burden hours. We attribute this adjustment to a decrease in the number of submissions for NDAs for diagnostic radiopharmaceuticals and new indication supplements for diagnostic radiopharmaceuticals we received over the past few years.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the issuance of approval of a product redeeming a priority review voucher. The Federal Food, Drug, and Cosmetic Act (FD&C Act) authorizes FDA to award priority review vouchers to sponsors of approved rare pediatric disease product applications that meet certain criteria. FDA is required to publish notice of the issuance of priority review vouchers as well as the approval of products redeeming a priority review voucher. FDA has determined that XYWAV (calcium, magnesium, potassium, and sodium oxybates), approved July 21, 2020, meets the criteria for redeeming a priority review voucher.
Cathryn Lee, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 301-796-1394, email:
FDA is announcing the approval of a product redeeming a rare pediatric disease priority review voucher. Under section 529 of the FD&C Act (21 U.S.C. 360ff), FDA will report the issuance of rare pediatric disease priority review vouchers and the approval of products for which a voucher was redeemed. FDA has determined that XYWAV (calcium, magnesium, potassium, and sodium oxybates) meets the redemption criteria.
For further information about the Rare Pediatric Disease Priority Review Voucher Program and for a link to the full text of section 529 of the FD&C Act, go to
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA, the Agency, or we) is announcing an opportunity for public comment on the proposed collection of certain information by the Agency. Under the Paperwork Reduction Act of 1995 (PRA), Federal agencies are required to publish notice in the
Either electronic or written comments on the collection of information must be submitted by March 25, 2024.
You may submit comments as follows. Please note that late, untimely filed comments will not be considered. 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
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
Under the PRA (44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
This information collection supports Agency regulations. Specifically, section 310(b) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 337(b)) authorizes a State to enforce certain sections of the FD&C Act in their own name and within their own jurisdiction. However, before doing so, a State must provide notice to FDA according to § 100.2 (21 CFR 100.2). The information required in a letter of notification under § 100.2(d) enables us to identify the food against which a State intends to take action and to advise that State whether Federal enforcement action against the food has been taken or is in process. With certain narrow exceptions, Federal enforcement action precludes State action under the FD&C Act.
We estimate the burden of this collection of information as follows:
Based on a review of the information collection since our last request for OMB approval, we have made no adjustments to our burden estimate.
The estimated reporting burden for § 100.2(d) is minimal because enforcement notifications are seldom used by States. During the last 3 years, we have not received any new enforcement notifications; therefore, we estimate that one or fewer notifications will be submitted annually. Although we have not received any new enforcement notifications in the last 3 years, these information collection provisions should be extended to provide for the potential future need of a State government to submit enforcement notifications informing us when it intends to take enforcement action under the FD&C Act against a particular food located in the State.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is requesting that any industry organizations interested in participating in the selection of a nonvoting industry representative to serve on the Cellular, Tissue, and Gene Therapies Advisory Committee (CTGTAC) for the Center for Biologics Evaluation and Research notify FDA in writing. FDA is also requesting nominations for a nonvoting industry representative(s) to serve on the CTGTAC. A nominee may either be self-nominated or nominated by an organization to serve as a nonvoting industry representative. Nominations will be accepted for current vacancies effective with this notice.
Any industry organization interested in participating in the selection of an appropriate nonvoting member to represent industry interests must send a letter stating that interest to FDA by February 22, 2024 (see sections I and II of this document for further details). Concurrently, nomination materials for prospective candidates should be sent to FDA by February 22, 2024.
All statements of interest from industry organizations interested in participating in the selection process of nonvoting industry representative nominations should be sent via email to Cicely Reese or Marie DeGregorio (see
Cicely Reese or Marie DeGregorio, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 1232, Silver Spring, MD 20993-0002, 240-620-9987, email:
The Agency intends to add a nonvoting industry representative(s) to the following advisory committee:
The Committee reviews and evaluates available data relating to the safety, effectiveness, and appropriate use of human cells, human tissues, gene transfer therapies, and xenotransplantation products, which are intended for transplantation, implantation, infusion, and transfer in the prevention and treatment of a broad spectrum of human diseases and in the reconstruction, repair, or replacement of tissues for various conditions. The Committee also considers the quality and relevance of FDA's research program, which provides scientific support for the regulation of these products, and makes appropriate recommendations to the Commissioner of Food and Drugs.
Any industry organization interested in participating in the selection of an appropriate nonvoting member to represent industry interests should send a letter via email stating that interest to the FDA contact (see
Individuals may self-nominate, and/or an organization may nominate one or more individuals to serve as a nonvoting industry representative. Nomination must include a current, complete résumé or curriculum vitae for each nominee, including current business address and telephone number, email address if available, and a signed copy of the Acknowledgement and Consent form available at the FDA Advisory Committee Membership Nomination Portal (see
FDA seeks to include the views of women and men, members of all racial and ethnic groups, and individuals with and without disabilities on its advisory committees and, therefore, encourages nominations of appropriately qualified candidates from these groups.
This notice is issued under the Federal Advisory Committee Act (5 U.S.C. 1001
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the issuance of approval of a product redeeming a priority review voucher. The Federal Food, Drug, and Cosmetic Act (FD&C Act) authorizes FDA to award priority review vouchers to sponsors of approved rare pediatric disease product applications that meet certain criteria. FDA is required to publish notice of the issuance of priority review vouchers as well as the approval of products redeeming a priority review voucher. FDA has determined that VEOZAH (fezolinetant), approved May 12, 2023, meets the criteria for redeeming a priority review voucher.
Cathryn Lee, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 301-796-1394, email:
FDA is announcing the approval of a product redeeming a rare pediatric disease priority review voucher. Under section 529 of the FD&C Act (21 U.S.C. 360ff), FDA will report the issuance of rare pediatric disease priority review vouchers and the approval of products for which a voucher was redeemed. FDA has determined that VEOZAH (fezolinetant) meets the redemption criteria.
For further information about the Rare Pediatric Disease Priority Review Voucher Program and for a link to the full text of section 529 of the FD&C Act, go to
Health Resources and Services Administration (HRSA), Department of Health and Human Services (HHS).
Notice.
In compliance with the requirement for opportunity for public comment on proposed data collection projects of the Paperwork Reduction Act of 1995, HRSA announces plans to submit an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB). Prior to submitting the ICR to OMB, HRSA seeks comments from the public regarding the burden estimate, below, or any other aspect of the ICR.
Comments on this ICR should be received no later than March 25, 2024.
Submit your comments to
To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, email
The forms used by each LRP include the following: (1) the NHSC LRP Application, (2) the Authorization for Disclosure of Loan Information Form, (3) the Privacy Act Release Authorization Form, and, if applicable, (4) the Verification of Disadvantaged Background Form, (5) the Private Practice Option Form, and (6) the NHSC Spanish Language Assessment Proficiency Test Form. The first four of the NHSC LRP Forms collect information that is needed for selecting participants and repaying qualifying educational loans. The Private Practice Option and Spanish Language Assessment forms are needed to collect information from applicants who wish to be considered for those options.
Office for Global Affairs, Office of the Secretary, HHS.
Notice; extension of comment period.
This document extends the comment period for the Notice and Request for Comments on the Implications of Access and Benefit Sharing (ABS) Commitments/Regimes and Other Proposed Commitments Being Considered Under a WHO Convention, Agreement or Other International Instrument on Pandemic Prevention, Preparedness and Response that appeared in the December 22, 2023, issue of the
The comment period for the notice published December 22, 2023, at 88 FR 88637, is extended. To be assured consideration, comments must be received no later than 5 p.m. Eastern time January 31, 2024.
Written comments should be emailed to
Susan Kim, Office for Global Affairs, Office of the Secretary, HHS, Room (639H) Hubert H. Humphrey Building, 200 Independence Avenue SW, Washington, DC 20201.
In December 2021, WHO's Member States decided at a Special Session of the World Health Assembly to establish an intergovernmental negotiating body (INB), representing all regions of the world, to draft and negotiate a WHO convention, agreement, or other international instrument on pandemic prevention, preparedness, and response. More information about the INB process can be found here:
The United States has expressed support for the development of an international instrument to protect the world from pandemic health threats now and in the future, and in a more rapid and equitable manner. Full details on the negotiating text and the outcomes sought by the United States are available at
To provide additional time for interested parties to consider and comment on the negotiating text, the Department is extending the comment period for all comments through January 31, 2024.
Coast Guard, Department of Homeland Security.
Notice of open Federal advisory committee meeting.
The National Offshore Safety Advisory Committee (Committee) will conduct a series of meetings over 2 days in New Orleans, LA to discuss matters relating to activities directly involved with, or in support of, the exploration of offshore mineral and energy resources, to the extent that such matters are within the jurisdiction of the United States Coast Guard. All meetings will be open to the public.
The full Committee will meet on Wednesday, March 13, 2024, from 8 a.m. to 5 p.m. (CDT). Please note these meetings may close early if the subcommittees or the full Committee have completed their business.
The meetings will be held at the Renaissance New Orleans Pere Marquette French Quarter Area Hotel, 817 Common Street, New Orleans, LA 70112-2307, website Family-Friendly Hotel, New Orleans | Renaissance New Orleans French Quarter Area (
The National Offshore Safety Advisory Committee is committed to ensuring all participants have equal access regardless of disability status. If you require reasonable accommodations due to a disability to fully participate, please email Mr. Patrick Clark at
Mr. Patrick W. Clark, Designated Federal Officer of the National Offshore Safety Advisory Committee, 2703 Martin Luther King Jr Ave SE, Stop 7509, Washington, DC 20593-7509, telephone 571-607-8236 or email
Notice of this meeting is given pursuant to the
Two subcommittees will meet to discuss the following task statements.
The task statements and other subcommittee information are located at Pages—Missions Content (
The agenda for the March 13, 2024 Committee meeting is as follows:
(1) Call to order.
(2) Roll call and determination of quorum.
(3) Installation of new Chair and Vice-Chair.
(4) Adoption of previous meeting minutes and agenda.
(5) Opening remarks.
(6) Update/Final Report from the 33 CFR Subchapter N Subcommittee.
(7) Update/Final Report from the SEACOR POWER Subcommittee.
(8) New business.
(9) Public comment period.
(10) Closing remarks/plans for next meeting.
(11) Adjournment of meeting.
A copy of all pre-meeting documentation will be available at: Pages—Missions Content (
During the March 13, 2024, Committee meeting, a public comment period will be held from approximately 4:30 p.m. to 5 p.m. (CDT). Speakers are requested to limit their comments to 3 minutes. Please note that this public comment period may start before 4:30 p.m. (CDT) if all other agenda items have been covered and may end before 5 p.m. (CDT) if all of those wishing to comment have done so. Please contact the individual listed in the
Coast Guard, DHS.
Notice of intent to prepare a Programmatic Environmental Impact Statement; notice of virtual and in-person scoping meetings; and request for comments.
The Coast Guard, as the lead agency, announces its intent to prepare a Programmatic Environmental Impact Statement that will evaluate the potential environmental consequences of the Coast Guard's Proposed Action to establish shipping safety fairways and other routing measures along the Atlantic Coast of the United States. While vessels are not required to use them, fairways are designed to keep traditional navigation routes free from fixed structures that could impact navigation safety and impede other shared offshore activities. This Notice of Intent is intended to solicit feedback on preliminary alternatives to help the Coast Guard narrow the scope of the PEIS. The Coast Guard intends to host three in-person meetings and one virtual scoping public meeting to provide additional information to the public and to solicit input on potential issues, concerns, and reasonable alternatives that should be considered in the PEIS.
Comments must be submitted at one of the public meetings or in writing to the online docket via
You may submit comments identified by docket number USCG-2023-0928 using the Federal Decision Making Portal at
For information about this document call or email Maureen Kallgren, Coast Guard;
We encourage you to submit comments (or related material) on preliminary alternatives to help the Coast Guard narrow the scope of the PEIS. If you submit a comment, please include the docket number for this notice, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We plan to hold four public meetings, three of which will be held in person and one will be held virtually to solicit feedback. At these meetings, the Coast Guard will present an overview of the fairway development process and the environmental review process before holding a question-and-answer session with questions from the public.
The first in-person meeting will be from 6 p.m. to 8 p.m. on January 31 at White's of Westport, 66 State Road, Westport, MA. The second in-person meeting will be held from 6 p.m. to 8 p.m. on February 7 at the Georgia Southern University, Armstrong Campus Student Union, Ogeechee Theatre, 11935 Abercorn Street, Savannah, GA. The third in-person meeting will take place from 5 p.m. to 7 p.m. on February 12 at the Jordan Newby Branch at Broad Creek of the Norfolk Public Library, 1425 Norchester Ave, Norfolk, VA 23504. The fourth meeting will be held virtually on February 15 at
The public is encouraged to pre-register for these meetings using
For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact the person named in the
This NOI briefly summarizes the Proposed Action, including the purpose and need and possible alternatives. As required by the National Environmental Policy Act (NEPA) and its implementing regulations (40 CFR 1500 through 1508, specifically 40 CFR 1502.3), a Federal agency must prepare an EIS if it is proposing a major Federal action. For this action, the Coast Guard has determined that a PEIS is the most appropriate type of environmental review because of the large geographic footprint of the proposed fairways. This process is designed to analyze the environmental consequences of each alternative to inform the agency's decision.
The Ports and Waterways Safety Act authorizes the Coast Guard to take certain actions to advance port, harbor, and coastal facility safety and security. Specifically, 46 U.S.C. 70001 and 70034 authorize the Secretary of the department in which the Coast Guard is operating to promulgate regulations to establish reporting and operating requirements, surveillance and communications systems, routing systems, and shipping safety fairways. The Secretary has delegated this authority to the Commandant of the Coast Guard (Department of Homeland Security (DHS) Delegation 00170.1, Revision No. 01.3, paragraph (II)(70)).
The Coast Guard proposes to codify existing vessel traffic patterns into shipping safety fairways, traffic separation schemes (TSSs), and precautionary areas along the Atlantic Coast of the United States. The Coast Guard recognizes current offshore development trends and other increased shared commercial activities on the Outer Continental Shelf (OCS) necessitate coordination between industries. We believe that OCS users are best served by the establishment of consistent and clearly defined navigation systems. More information on the proposed rules can be found in the Notice of Proposed Rulemaking (NPRM) 89 FR 3587.
Coast Guard has identified a Proposed Action and preliminary Alternatives for potential consideration in the PEIS. These alternatives, described below, represent the many potential forms that the fairways might ultimately take. These forms range from establishing no fairways at all to the extension of the proposed fairways to the outer limit of our authority on the OCS. This NOI is intended to solicit feedback on these alternatives to help the Coast Guard narrow the scope of the PEIS. Maps are available in the docket to help readers visualize the fairways and distinguish one alternative from another.
The Coast Guard will analyze a No-Action Alternative. For the purposes of this PEIS, the No-Action Alternative is defined as not establishing any fairways along the Atlantic Coast.
Alternative 1 would establish shipping safety fairways consistent with those described in the 2020 ANPRM (85 FR 37034). This design is based on navigation safety corridors identified in the Atlantic Coast Port Access Route Study (Atlantic Coast PARS or ACPARS) prior to adaptations made based on further study and public input since 2020. In the ACPARS, the Coast Guard used Automatic Identification System (AIS) data and information from towing vessel and deep draft shipping organizations to identify traditionally used navigation routes.
The ACPARS identified nine primary navigation safety corridors as potentially suitable for designation as fairways. Three of these are primary navigation safety corridors along the coast and would most likely be used by smaller and slower moving vessels. Six offshore fairways are most likely to be
Alternative 2 (Proposed Action) would establish shipping safety fairways, TSS, precautionary areas, and one fairway anchorage included in the Notice of Proposed Rule Making (NPRM). 89 FR 3587. In the Proposed Rule, the Coast Guard is proposing 18 fairways, three TSS extensions, four new precautionary areas, two modified precautionary areas and one fairway anchorage. The proposed fairways vary in width from 3 to 35 nautical miles in width.
Alternative 3 would establish shipping safety fairways included in the Proposed Rule with the addition of fairways in the Gulf of Maine. As described in the Approaches to Maine, New Hampshire, and Massachusetts PARS, these additional fairways would include the Massachusetts Bay Fairway, the Gulf of Maine Fairway, the Coastal Zone Fairway, and two Portland approach fairways. See 88 FR 20547 for more information.
Alternative 4 establish shipping safety fairways included in the Proposed Rule with the addition of fairways in southern Florida. The additional fairways would be extended to include an area from approximately Port St. Lucie south to the approaches to the Port of Miami. Extensive port access studies are underway for this area but are in the preliminary stages of development.
Alternative 5 establish shipping safety fairways included in the Proposed Rule with the addition of fairways both in the Gulf of Maine and South Florida. As a result, this alternative would include fairways from the Gulf of Maine to the southern extent of Florida on the Atlantic Coast.
Alternative 6 would establish shipping safety fairways included in the Proposed Rule with the addition of several extensions that would expand certain east-west port-approach fairways out to the limit of the exclusive economic zone (EEZ). These extensions would cover approaches to and departures from the Port of New York/New Jersey, the Delaware Bay, the Chesapeake Bay, the Port of Morehead City in North Carolina, and the Port of Wilmington in North Carolina.
Alternative 7 would establish shipping safety fairways included in the Proposed Rule with the addition of fairways in the Gulf of Maine, fairways in South Florida, and several extensions that would expand certain east-west port-approach fairways out to the limit of the EEZ. These additions would include all the extensions considered by Alternative 6 with the addition of two extensions that would cover approaches to and departures from Portland, ME, and the Gulf of Maine.
NEPA requires the identification and evaluation of impacts to the human environment likely to be caused by an agency's proposed action. The PEIS proposed in this NOI will be a planning-level document and the Coast Guard will work toward environmental compliance during the design and designation of the fairways. The PEIS will analyze potential impacts to the human environment caused by each of the alternatives.
The broad geographic area of the Proposed Action may impact physical, biological, and socioeconomic resources. Impacts to resources associated with proposed fairways are generally due to disturbance, vessel strikes, noise, ballast and biofouling, and gas emissions. Biological and physical resources impacted by the proposed fairways may include water quality, air quality, habitat (
Under the Proposed Action, vessel noise, vessel operations, and vessel movement are not expected to result in significant impacts to the following resources: air quality, ambient sound, marine vegetation, marine invertebrates, flying insects, birds, bats, marine fish, EFH, commercial fishing, marine construction, mineral extraction, oil and gas extraction, recreation and tourism, existing renewable energy projects, research, transportation and shipping, and subsistence fishing and hunting. Pursuant to the Endangered Species Act of 1973 (ESA) (16 U.S.C. 1531
Pursuant to the Migratory Bird Treaty Act (MBTA; 16 U.S.C. 703-712
Socioeconomic impacts considered in the PEIS may include impacts to commercial and recreational fishing; tourism and recreation; public health and safety; transportation; communications infrastructure; domestic and international seafood markets; oil, gas and alternative energy development and infrastructure; military preparedness; local ports, marinas and communities; and local job markets. Cultural and historic resources impacted could include archaeological sites, traditional fishing grounds and American Indian traditional uses. Environmental justice impacts considered include potential impacts of the action on vulnerable communities.
Wherever possible and supported by the best available science, the PEIS will recommend mitigation strategies to address potential impacts associated with Atlantic fairways establishment along the U.S. coast.
The Coastal Zone Management Act (CZMA; 16 U.S.C. 1451
The MSA requires Federal agencies to consult with the Secretary of Commerce, through the National Marine Fisheries Service (NMFS), with respect to “any action authorized, funded, or undertaken, or proposed to be authorized, funded, or undertaken, by such agency that may adversely affect any essential fish habitat identified under this Act,” 16 U.S.C. 1855(b)(2). The Coast Guard will determine the impact of the Proposed Rule and consult with the NMFS if necessary.
The ESA provides for the conservation of endangered and threatened species and the ecosystems on which they depend. The Coast Guard anticipates consulting under Section 7 of the ESA with the National Marine Fisheries Service and the U.S. Fish and Wildlife Service, which have jurisdiction over the species (50 CFR part 402.14(a)).
The MMPA (16 U.S.C. 1361
The Clean Water Act (33 U.S.C. 1251,
The National Historic Preservation Act (NHPA; 16 U.S.C. 470,
The Clean Air Act (42 U.S.C. 7401,
In addition, Coast Guard will complete Consultation with all affected Federally Recognized Tribes on a government-to-government basis in accordance with Executive Order 13175.
Following the scoping period announced in this Notice of Intent, and after consideration of all comments received during scoping, Coast Guard will prepare a Draft PEIS for the Proposed Action to establish shipping safety fairways (“fairways”) along the Atlantic Coast of the United States. Once the Draft PEIS is completed, it will be made available for a 45-day public review and comment period. Coast Guard will announce the availability of the Draft PEIS in the
This NOI initiates the scoping process, which guides the development of the PEIS. The Coast Guard is seeking comments on the potential environmental impacts that may result from the Proposed Action or preliminary Alternatives. The Coast Guard is also seeking input on relevant information, studies, or analyses of any kind concerning impacts potentially affecting the quality of the human environment as a result of the Proposed Action. NEPA requires federal agencies to consider environmental impacts that may result from a Proposed Action, to inform the public of potential impacts and alternatives, and to facilitate public involvement in the assessment process. The PEIS would include, among other topics, discussions of the purpose and need for the Proposed Action, a description of alternatives, a description of the affected environment, and an evaluation of the environmental impact of the Proposed Action and alternatives.
The Coast Guard intends to follow the CEQ regulations (40 CFR 1500 et. seq.) by scoping through public comments. Scoping, which is integral to the process for implementing NEPA, provides a process to ensure that (1) issues are identified early and properly studied; (2) issues of little significance do not consume substantial time and effort; (3) the Draft PEIS is thorough and balanced; and (4) delays caused by an inadequate PEIS are avoided.
Public scoping is a process for determining the scope of issues to be addressed in this PEIS and for identifying the issues related to the Proposed Action that may have a significant effect on the environment. The scoping process begins with publication of this notice. The Coast Guard seeks to do the following during the scoping process:
• Invite the participation of Federal, State, and local agencies, any affected Indian tribe, and other interested persons;
• Consult with affected Federally Recognized Tribes on a government-to-government basis in accordance with Executive Order 13175 and other policies. Native American concerns, including potential impacts on Treaty rights, Indian trust assets, and cultural resources, will be given appropriate consideration;
• Determine the scope and the issues to be analyzed in depth in the PEIS;
• Indicate any related environmental assessments or environmental impact statements that are not part of the PEIS;
• Identify other relevant environmental review and consultation requirements, such as Coastal Zone Management Act consistency evaluations, and threatened and endangered species and habitat impacts; and
• Indicate the relationship between timing of the environmental review and other aspects of the application process.
With this NOI, Federal, State, Tribal, and local agencies with jurisdiction or special expertise with respect to environmental issues in the project area are asked to formally cooperate with the Coast Guard in the preparation of the PEIS.
Once the scoping process is complete, Coast Guard will prepare a Draft PEIS and will publish a
Pursuant to the CEQ regulations, Coast Guard invites public participation in the NEPA process. This notice requests public participation in the scoping process, establishes a public comment period, and provides information on how to participate.
The 45-day public scoping period begins January 23, 2024 and ends March 8, 2024. Comments and related material submitted to the online docket via
We encourage you to submit specific, timely, substantive, and relevant comments through the Federal Decision Making Portal at
In submissions, please include the docket number for this Notice of Intent and provide reasoning for comments. To be considered timely, comments must be received on or before February 27, 2024 to be considered in the Draft PEIS. We will consider all substantive and relevant comments received during the comment period.
We accept anonymous comments. Comments we post to
We review all comments received, but we will only post comments that address the topic of the notice. We may choose not to post off-topic, inappropriate, or duplicate comments that we receive. Documents mentioned in this Notice of Intent as being available in the docket, and posted public comments, will be in the online docket at
This notice is issued under authority found in 42 U.S.C. 4332.
Office of Policy Development and Research, HUD.
Notice of a new system of records.
Pursuant to the provisions of the Privacy Act of 1974, as amended, the Department of the Housing and Urban Development (HUD), Office of Policy Development & Research (PD&R) is issuing a public notice of its intent to establish a Privacy Act system of records titled “Moving to Work (MTW) Asset Building Cohort Evaluation Data Files.” The purpose of the system is to serve as a repository that stores and maintains statistically analyzed data collected to evaluate asset building programs implemented by the Public Housing Agencies (PHAs) participating in the Moving to Work (MTW) Asset Building Cohort.
Comments will be accepted on or before February 22, 2024. This proposed action will be effective on the date following the end of the comment period unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number, by one of the following methods:
The Privacy Office; LaDonne White; 451 Seventh Street SW, Room 10139; Washington, DC 20410; telephone number (202) 708-3054 (this is not a toll-free number). HUD welcomes and is prepared to receive calls from individuals who are deaf or hard of hearing, as well as individuals with speech or communication disabilities. To learn more about how to make an accessible telephone call, please visit
The Consolidated Appropriations Act of 2016 authorized HUD to award Moving to Work (MTW) authority to 100 additional Public Housing Authorities (PHAs) by September 2023, and required that new MTW agencies be selected in cohorts with a specific policy focus. The participating PHAs will implement either a rent reporting for credit building program, an opt-out savings account program, or a PHA-
Moving to Work Asset Building Cohort Evaluation Data Files stores information needed to evaluate the impact of the asset building programs. The study sample for rent reporting will be drawn from households who volunteer to have their rental payments reported to credit agencies to build credit. To rigorously study the impact of rent reporting, volunteers will be randomly assigned to a treatment group for whom rental payments are reported or a control group for whom such reporting does not occur. The rent reporting study will include a longitudinal panel of families who will participate in qualitative, in-depth interviews to provide insight into how they understand and experience rent reporting for credit building. The evaluation of the MTW Asset Building Cohort will help HUD determine if asset building programs of the types studied can be effectively implemented by PHAs and if they positively impact the well-being of HUD-assisted households.
HUD researchers (including Abt Associates and MEF Associates) will use this information to examine household outcomes related to housing stability and financial wellbeing. Researchers will also seek to understand the experience of households participating in the asset building programs and the PHAs that implement the asset building programs. This System of Records will contain data necessary to evaluate the effect of these new asset building programs.
Moving to Work Asset Building Cohort Evaluation Data Files, HUD/PDR-11.
Unclassified
Records are maintained at the following locations: Amazon Web Services, East, N. Virginia, and . 20945 Loudoun County Pkwy, Ashburn, VA 20147; and the U.S. Department of Housing and Urban Development Headquarters, 451 7th Street SW, Washington, DC 20410.
Carol Star, Director, Program Evaluation Division, Office of Policy Development and Research, HUD, 451 Seventh Street SW, Washington, DC 20410, telephone number (202) 402-6139.
Sections 501 and 502 of the Housing and Urban Development Act of 1970 (Pub. L. 91-609) (12 U.S.C. 1701z-1; 1701z-2(d) and (g)).
The Moving to Work Asset Building Cohort Evaluation data files will store the information that is needed to evaluate the impact of the asset building programs on HUD-assisted households. The information to be maintained in this records system is necessary to identify participating families and determine the effectiveness of the interventions. The data in this system will be analyzed using statistical methods and any results shared with the public or published in any way will be reported only in the aggregate. Resulting reports will not disclose or identify any individuals or sensitive personal information.
Families enrolled in the Moving to Work asset building programs.
Moving to Work asset building program participants, HUD PIH Inventory Management System/PIH Information Center, Public Housing Agency information systems, Credit Bureau data.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act, HUD may disclose information in this system of records:
(1) Research and Statistical Analysis Disclosure Routine Use:
To contractors, grantees, experts, consultants, Federal agencies, and non-Federal entities, including, but not limited to, State and local governments and other research institutions or their parties, and entities and their agents with whom HUD has a contract, service agreement, grant, or cooperative agreement, or other agreement for the purposes of statistical analysis and research in support of program operations, management, performance monitoring, evaluation, risk management, and policy development, or to otherwise support the Department's mission. Records under this routine use may not be used in whole or in part to make decisions that affect the rights, benefits, or privileges of specific individuals. Research reports and other analysis conducted under this routine use may not disclose identifiable information; all results must be reported in the aggregate and must ensure that no individual is identifiable.
(2) Data Breach Remediation Purposes Routine Use:
(a) To appropriate agencies, entities, and persons when: (1) HUD suspects or has confirmed there a breach in the system of records; (2) HUD has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, HUD (including its information systems, programs, and operations), the Federal Government, or national security; and (3) The disclosure made to such agencies, entities, and persons is reasonably necessary to assist with HUD's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
(b) To another Federal agency or Federal entity, when HUD determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to suspected or confirmed breach, or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
(3) Contractor Routine Use:
To contractors, grantees, experts, consultants and their agents, or others performing or working under a contract, service, grant, cooperative agreement, or other agreement with HUD, when necessary to accomplish an agency function related to a system of records. Disclosure requirements are limited to only those data elements considered relevant to accomplishing an agency function.
Electronic and Paper.
Name, Social Security Number, the unique study ID, home address, telephone number, and personal email address.
Temporary. Destroy upon verification of successful creation of the final document or file, or when no longer needed for business use, whichever is later.
Individuals requesting records of themselves should address written inquiries to the Department of Housing Urban and Development 451 7th Street SW, Washington, DC 20410-0001. For verification, individuals should provide their full name, current address, and telephone number. In addition, the requester must provide either a notarized statement or an unsworn declaration made under 24 CFR 16.4.
The HUD rule for contesting the content of any record pertaining to the individual by the individual concerned is published in 24 CFR 16.8 or may be obtained from the system manager.
Individuals requesting notification of records of themselves should address written inquiries to the Department of Housing Urban Development, 451 7th Street SW, Washington, DC 20410-0001. For verification purposes, individuals should provide their full name, office or organization where assigned, if applicable, and current address and telephone number. In addition, the requester must provide either a notarized statement or an unsworn declaration made under 24 CFR 16.4.
None.
N/A.
Office of Policy Development and Research, HUD.
Notice of a modified system of records.
Pursuant to the provisions of the Privacy Act of 1974, as amended, the Department of the Housing and Urban Development (HUD), Office of Policy Development & Research (PD&R) is modifying a system of records, the Community Choice Demonstration (formerly the Housing Choice Voucher (HCV) Mobility Demonstration) Evaluation Data Files (CCD-EDF). The purpose of the Community Choice Demonstration Evaluation Data Files system is to serve as a repository to store, maintain, and statistically analyze all data collected through the evaluation of the Community Choice Demonstration. The modification makes updates to the system of records name, categories of records in the system, system location, record source categories, routine uses, policies and practices for storage and retrieval of records, policies and practices for retention and disposal of records, and safeguards. The updates are explained in the “Supplementary Section” of this notice.
This modification comments will be accepted on or before February 22, 2024. This SORN becomes effective immediately, while the routine uses become effective after the comment period immediately upon publication except for the routine uses, which will become effective on the date following the end of the comment period unless comments are received which result in a contrary determination.
You may submit comments, identified by the docket number or by one of the following methods:
LaDonne White; 451 Seventh Street SW, Room 10139, Washington, DC 20410, telephone number (202) 708-3054 (this is not a toll-free number). HUD welcomes and is prepared to receive calls from individuals who are deaf or hard of hearing, as well as individuals with speech or communication disabilities. To learn more about how to make an accessible telephone call,
HUD's Office of Policy Development & Research (PD&R) maintains the Community Choice Demonstration (formerly the Housing Choice Voucher (HCV) Mobility Demonstration) Evaluation Data Files system of records to store the information needed to evaluate the impact of the Community Choice Demonstration on a broad range of participant outcomes. A new information collection will be added to the existing Community Choice Demonstration Evaluation Data Files. The Department will expand the data collected for the current study evaluating the impact of the Community Choice Demonstration to include information on housing quality, such as exposure to indoor pollutants and allergens, and on adult and child health, among families who are part of the Community Choice Demonstration. HUD is publishing this revised notice to reflect updates to data collection and storage. Specific changes to the SORN include:
a.
b.
c.
d.
e.
f.
g.
h.
Community Choice Demonstration Evaluation Data Files, HUD/PDR-09.
Unclassified.
Abt Associates Inc., 10 Fawcett Street, Cambridge, MA and at 6130 Executive Blvd., Rockville, MD 20852; AT&T Datacenter, 15 Enterprise Ave, Secaucus, NJ 07094; Johns Hopkins University, 5801 Smith Avenue, Baltimore, MD 21209; the U.S. Census Bureau, 17101 Melford Blvd., Bowie, MD 20715; and HUD Headquarters, 451 7th Street SW, Washington, DC 20410-0001.
Carol Star, Director, Program Demonstration Division, Office of Policy Development and Research, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410-0001, Telephone Number (202) 402-6139.
Section 502 of the Housing and Urban Development Act of 1970 (Public Law 91-609) (12 U.S.C. 1701z-1; 1701z-2(d) and (g)).
The purpose of the Community Choice Demonstration Evaluation Data Files is to store the information that is needed to evaluate the impact of the Community Choice Demonstration. The information to be maintained in this records system is necessary to identify and track the participating families over the course of the study and determine the effectiveness of the interventions. The data in this system will be analyzed using statistical methods and any results shared with the public or published in any way will be reported only in the aggregate. Resulting reports will not disclose or identify any individuals or sensitive personal information.
Families enrolled in the Community Choice Demonstration, staff at public housing agencies (PHAs) that are administering the Community Choice Demonstration, providers of mobility services that are partnering with PHAs to administer the program, and landlords.
Head of household's full name, social security number, date of birth, alien registration number, unique study ID, home address, household composition, basic demographics of household members (educational attainment, relationship to head of household, employment information of adults, chronic health conditions of children etc.), housing and neighborhood status, perceptions of opportunity areas, financial well-being, individual and household earnings, responses to family qualitative interviews, and contact information.
Program participants, housing assessment measurement data, program participants' health measurement data, landlords, PHA staff, mobility service providers, Mobility Services Delivery Management Information Systems, HUD PIH Inventory Management System/PIH Information Center, and HUD Tenant Rental Assistance Certification System (TRACS).
(1) To a congressional office from the record of an individual, in response to an inquiry from the congressional office made at the request of that individual.
(2) To contractors, grantees, experts, consultants, Federal agencies, and non-Federal entities, including, but not limited to, State and local governments and other research institutions or their parties, and entities and their agents with whom HUD has a contract, service agreement, grant, or cooperative agreement, or other agreement for the purposes of statistical analysis and research in support of program operations, management, performance monitoring, evaluation, risk management, and policy development, or to otherwise support the Department's mission. Records under this routine use may not be used in whole or in part to make decisions that affect the rights, benefits, or privileges of specific individuals. The results of the matched information may not be disclosed in identifiable form.
(3) To contractors, grantees, experts, consultants and their agents, or others performing or working under a contract, service, grant, cooperative agreement, or other agreement with HUD, when necessary to accomplish an agency function related to a system of records. Disclosure requirements are limited to only those data elements considered relevant to accomplishing an agency function.
(4) To appropriate agencies, entities, and persons when: (1) HUD suspects or has confirmed there has breached the system of records; (2) HUD has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, HUD (including its information systems, programs, and operations), the Federal Government, or national security; and (3) The disclosure made to such agencies, entities, and persons is reasonably necessary to assist with HUD's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
(5) To another Federal agency or Federal entity, when HUD determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to suspected or confirmed breach, or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
(6) To any component of the Department of Justice or other Federal agency conducting litigation or in proceedings before any court, adjudicative, or administrative body, when HUD determines that the use of such records is relevant and necessary to the litigation and when any of the following is a party to the litigation or have an interest in such litigation: (1) HUD, or any component thereof; or (2) any HUD employee in his or her official capacity; or (3) any HUD employee in his or her individual capacity where the Department of Justice or agency conducting the litigation has agreed to represent the employee; or (4) the United States, or any agency thereof, where HUD determines that litigation is likely to affect HUD or any of its components.
(7) To a court, magistrate, administrative tribunal, or arbitrator in the course of presenting evidence, including disclosures to opposing counsel or witnesses in the course of civil discovery, litigation, mediation, or settlement negotiations; or in connection with criminal law proceedings; when HUD determines that use of such records is relevant and necessary to the litigation and when any of the following is a party to the litigation or have an interest in such litigation: (1) HUD, or any component thereof; or (2) any HUD employee in his or her official capacity; or (3) any HUD employee in his or her individual capacity where HUD has agreed to represent the employee; or (4) the United States, or any agency thereof, where HUD determines that litigation is likely to affect HUD or any of its components.
(8) To appropriate Federal, State, local, tribal, or governmental agencies or multilateral governmental organizations responsible for investigating or prosecuting the violations of, or for enforcing or implementing, a statute, rule, regulation, order, or license, where HUD determines that the information would assist in the enforcement of civil or criminal laws when such records, either alone or in conjunction with other information, indicate a violation or potential violation of law.
(9) To contractors, grantees, experts, consultants, Federal agencies, and non-Federal entities, including, but not limited to, State and local governments and other research institutions or employees or contractors, and other entities and their agents for the conduct of HUD-approved ancillary studies relevant to the evaluation of the Community Choice Demonstration. Records under this routine use may not be used in whole or in part to make decisions that affect the rights, benefits, or privileges of specific individuals. Research reports resulting from any such ancillary studies would be required to report all results in the aggregate and to ensure that no individual was identifiable.
Electronic and paper.
Name, social security number, date of birth, home address, telephone number, and personal email address, and Unique Study ID.
Temporary. Destroy upon verification of successful creation of the final document or file, or when no longer needed for business use, whichever is later.
Individuals requesting records of themselves should address written inquiries to the Department of Housing Urban and Development 451 7th Street, SW Washington, DC 20410. For verification, individuals should provide their full name, current address, and telephone number. In addition, the requester must provide either a notarized statement or an unsworn declaration made under 24 CFR 16.4.
The HUD rule for accessing, contesting, and appealing agency determinations by the individual concerned are published in 24 CFR 16.8 or may be obtained from the system manager.
Individuals requesting notification of records of themselves should address written inquiries to the Department of Housing Urban Development, 451 7th Street SW, Washington, DC 20410-0001. For verification purposes, individuals should provide their full name, office or organization where assigned, if applicable, and current address and telephone number. In addition, the requester must provide either a notarized statement or an unsworn declaration made under 24 CFR 16.4.
None.
Document Citation: 87 FR 32179, Docket No. FR-7062-N-05, May 27, 2022.
Office of Single-Family Asset Management, HUD.
Notice of a rescindment of a systems of records.
Pursuant to the provisions of the Privacy Act of 1974, as amended, the Department of the Housing and Urban Development (HUD), the Office of Single-Family Asset Management, is issuing a public notice of its intent to rescind the Validation and Disposition Service (VDS-Best Ex) because the project was terminated and never went into Production.
Comments will be accepted on or before February 22, 2024. This proposed action will be effective immediately upon publication.
You may submit comments, identified by one of the following methods:
LaDonne White, Chief Privacy Officer, 451 Seventh Street SW, Room 10139; Washington, DC 20410; telephone number (202) 708-3054 (this is not a toll-free number). HUD welcomes and is prepared to receive calls from individuals who are deaf or hard of hearing, as well as individuals with speech or communication disabilities. To learn more about how to make an accessible telephone call, please visit
The Validation and Disposition Service (VDS-Best Ex) is being terminated because the project never went into production. The VDS-Best Ex was developed to allow HUD to mitigate financial risk to the Federal Housing Administration (FHA) Mutual Mortgage Insurance Fund (MMIF) by providing property valuation and disposition strategies. The records are no longer maintained by HUD and have run the record retention period. All test and other data containing PII used in development has been deleted.
Validation and Disposition Service (VDS-Best Ex).
Agency Docket Number: FR-6146-N-02, 84 FR 14386 (April 10, 2019)
Fish and Wildlife Service, Interior.
Notice of receipt of permit applications; request for comments.
We, the U.S. Fish and Wildlife Service, have received applications for permits to conduct activities intended to enhance the propagation or survival of endangered or threatened species under the Endangered Species Act. We invite the public and local, State, Tribal, and Federal agencies to comment on these
We must receive your written comments on or before February 22, 2024.
•
•
Nathan Rathbun, 612-713-5343 (phone);
We, the U.S. Fish and Wildlife Service, invite review and comment from the public and local, State, Tribal, and Federal agencies on applications we have received for permits to conduct certain activities with endangered and threatened species under section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (ESA; 16 U.S.C. 1531
The ESA prohibits certain activities with endangered and threatened species unless authorized by a Federal permit. The ESA and our implementing regulations in part 17 of title 50 of the Code of Federal Regulations (CFR) provide for the issuance of such permits and require that we invite public comment before issuing permits for activities involving endangered species.
A recovery permit issued by us under section 10(a)(1)(A) of the ESA authorizes the permittee to conduct activities with endangered species for scientific purposes that promote recovery or for enhancement of propagation or survival of the species. Our regulations implementing section 10(a)(1)(A) for these permits are found 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.
The ESA requires that we invite public comment before issuing these permits. Accordingly, we invite local, State, Tribal, and Federal agencies and the public to submit written data, views, or arguments with respect to these applications. The comments and recommendations that will be most useful and likely to influence agency decisions are those supported by quantitative information or studies. Proposed activities in the following permit requests are for the recovery and enhancement of propagation or survival of the species in the wild.
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. Moreover, 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 permits to any of the applicants 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 Indian Affairs, Interior.
Notice.
This notice publishes the approval by operation of law of amendments to the Tribal-State Gaming Compacts between the Sherwood Valley Rancheria of Pomo Indians, Resighini Rancheria, Manchester Band of Pomo Indians of the Manchester Rancheria, Cahto Tribe of the Laytonville Rancheria, respectively, and the State of California.
The Compacts takes effect on January 23, 2024.
Ms. Paula L. Hart, Director, Office of Indian Gaming, Office of the Assistant Secretary—Indian Affairs, Washington, DC 20240, (202) 219-4066.
The Indian Gaming Regulatory Act of 1988, 25 U.S.C. 2701
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act of 1976, the U.S Department of the Interior, Bureau of Land Management (BLM), Hassayampa Field Office, Arizona, will hold a public meeting for the U.S. Forest Service's (FS) withdrawal application for 3,739 acres of National Forest System (NFS) lands within the Prescott National Forest. The FS's request is for withdrawal of these lands from location and entry under the U.S. mining laws, and from leasing under the mineral and geothermal leasing laws, for a 20-year term, subject to valid existing rights. The purpose of the requested withdrawal is to protect the Hassayampa River riparian corridor, located in Yavapai County, Arizona, from potential adverse impacts from mining and mineral or geothermal development activities.
The BLM will hold one public meeting on February 28, 2024. The meeting will begin at 6 p.m. Mountain Time (MT) and adjourn at approximately 7 p.m. MT.
The meeting will be held at the Prescott Public Library, 215 East Goodwin Street, Prescott, AZ 86303.
Michael Ouellett, Realty Specialist, BLM Arizona State Office, telephone (602) 417-9561, or email
Individuals who need special assistance, such as sign language interpretation or other reasonable accommodations, should contact Michael Ouellett at least two weeks before the start of the meeting.
The FS's request is for a new withdrawal encompassing 1,677.25 acres of NFS lands previously withdrawn by Public Land Order No. 7414 (expired October 11, 2019), and an additional 2,061.75 acres of riparian corridor that the FS has identified as needing protection. A description of these lands was published in the
The meeting is open to the public, and a public comment period will be held. Depending on the number of persons wishing to comment and the time available, time allotted for individual oral comments may be limited. Use of the Prescott Public Library meeting rooms or other facilities by any person, candidate, group, or organization does not constitute or imply the endorsement, recommendation, or favoring of the City of Prescott, or any of its officials, employees, or contractors acting on its behalf.
Written comments may be submitted at the meeting. 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.
National Park Service, Interior.
Notice.
The National Park Service is soliciting electronic comments on the significance of properties nominated before January 13, 2024, for listing or related actions in the National Register of Historic Places.
Comments should be submitted electronically by February 7, 2024.
Comments are encouraged to be submitted electronically to
Sherry A. Frear, Chief, National Register of Historic Places/National Historic Landmarks Program, 1849 C Street NW, MS 7228, Washington, DC 20240,
The properties listed in this notice are being considered for listing or related actions in the National Register of Historic Places. Nominations for their consideration were received by the National Park Service before January 13, 2024. Pursuant to section 60.13 of 36 CFR part 60, comments are being accepted concerning the significance of the nominated properties under the National Register criteria for evaluation.
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.
Nominations submitted by State or Tribal Historic Preservation Officers:
A request for removal has been made for the following resource(s):
Additional documentation has been received for the following resource(s):
Drug Enforcement Administration, Justice.
Notice of application.
Mylan Inc. has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before February 22, 2024. Such persons may also file a written request for a hearing on the application on or before February 22, 2024.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on December 5, 2023, Mylan Inc., 3711 Collins Ferry Road, Morgantown, West Virginia 26505-2362, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import the above controlled substances as bulk active pharmaceutical ingredients for internal testing purposes only and finished dosage forms for analytical testing and distribution for clinical trials to support foreign market participation. No other activity for these drug codes is authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale.
Drug Enforcement Administration, Justice.
Notice of application.
Mylan Pharmaceuticals, Inc. has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before February 22, 2024. Such persons may also file a written request for a hearing on the application on or before February 22, 2024.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on December 6, 2023 Mylan Pharmaceuticals, Inc., 2898 Manufacturers Road, Greensboro, North Carolina 27406-4600, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import the above listed controlled substances in finished dosage form for commercial distribution to its customers. No other activities for these drug codes are authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale.
Drug Enforcement Administration, Justice.
Notice of application.
Invizyne Technologies, Inc. has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to Supplemental Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before March 25, 2024. Such persons may also file a written request for a hearing on the application on or before March 25, 2024.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.33(a), this is notice that on November 17, 2023, Invizyne Technologies, Inc., 750 Royal Oaks Drive, Suite 106, Monrovia, California 91016-6357, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to bulk manufacture the listed controlled substance for the internal use intermediates or for sale to its customers. In reference to drug code 7370 (Tetrahydrocannabinols), the company plans to bulk manufacture this drug as synthetic. No other activities for this drug code is authorized for this registration.
Drug Enforcement Administration, Justice.
Notice of application.
Medi-Physics Inc. DBA GE Healthcare has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before February 22, 2024. Such persons may also file a written request for a hearing on the application on or before February 22, 2024.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on December 14, 2023, Medi-Physics Inc. DBA GE Healthcare, 3350 North Ridge Avenue, Arlington Heights, Illinois 60004-1412 applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import derivatives of the listed controlled substances to be used for the manufacture of a diagnostic product and reference standards. No other activities for these drug codes are authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale.
Drug Enforcement Administration, Justice.
Notice of application.
Myonex Inc. has applied to be registered as an importer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before February 22, 2024. Such persons may also file a written request for a hearing on the application on or before February 22, 2024.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.34(a), this is notice that on December 20, 2023, Myonex Inc., 100 Progress Drive, Horsham, Pennsylvania 19044, applied to be registered as an importer of the following basic class(es) of controlled substance(s):
The company plans to import the listed controlled substances in dosage form for clinical trials, research, and analytical purposes. No other activities for these drug codes are authorized for this registration.
Approval of permit applications will occur only when the registrant's business activity is consistent with what is authorized under 21 U.S.C. 952(a)(2). Authorization will not extend to the import of Food and Drug Administration-approved or non-approved finished dosage forms for commercial sale.
Drug Enforcement Administration, Justice.
Notice of application.
Maridose, LLC has applied to be registered as a bulk manufacturer of basic class(es) of controlled substance(s). Refer to Supplementary Information listed below for further drug information.
Registered bulk manufacturers of the affected basic class(es), and applicants therefore, may submit electronic comments on or objections to the issuance of the proposed registration on or before March 25, 2024. Such persons may also file a written request for a hearing on the application on or before March 25, 2024.
The Drug Enforcement Administration requires that all comments be submitted electronically through the Federal eRulemaking Portal, which provides the ability to type short comments directly into the comment field on the web page or attach a file for lengthier comments. Please go to
In accordance with 21 CFR 1301.33(a), this is notice that on December 5, 2023, Maridose, LLC, 74 Orion Street, Unit 7, Brunswick, Maine 04011, applied to be registered as a bulk manufacturer of the following basic class(es) of controlled substance(s):
The company plans to bulk manufacture the listed controlled substances to supply the Drug Enforcement Administration-registered researchers for their approval studies. No other activities for these drug codes are authorized for this registration.
On January 9, 2024, the Department of Justice lodged a proposed Partial Consent Decree with the United States District Court for the District of Arizona, in the lawsuit entitled
The United States filed this lawsuit under the Clean Water Act. The United States' complaint seeks injunctive relief for violations of the limitations and conditions established in the defendant's National Pollutant Discharge Elimination System (“NPDES”) permits at three of its wastewater treatment facilities within the Navajo Nation in Northeastern Arizona. The Partial Consent Decree requires the defendant to improve the performance of its exiting treatment plants in the short term, construct new treatment plants over the longer term, improve its operation and maintenance of the facilities, and study its collection systems to identify defects and plan for their repair.
The publication of this notice opens a period for public comment on the Partial Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the Partial Consent Decree may be downloaded and examined from this Justice Department website:
Please enclose a check or money order for $47.25 (25 cents per page reproduction cost) payable to the United States Treasury. For a paper copy without the exhibits and signature pages, the cost is $16.75.
Legal Services Corporation.
Notice.
The Legal Services Corporation (LSC) issues this Notice describing the conditions for submitting a pre-application for 2024 Technology Initiative Grants (TIGs), and for
Pre-Applications and full applications must be submitted electronically via LSC's unified grants management system, GrantEase.
Glenn Rawdon, Senior Program Counsel for Technology, Office of Program Performance, Legal Services Corporation, 3333 K Street NW, Washington, DC 20007; (202) 295-1552 or
Since 2000, Congress has provided an annual appropriation to LSC to award special funding for client self-help and information technology projects. LSC's TIG program funds technology tools that help achieve LSC's goal of increasing the quantity and quality of legal services available to eligible persons. Projects funded under the TIG program develop, test, and replicate innovative technologies that can enable grant recipients and state justice communities to improve low-income persons' access to high-quality legal assistance through an integrated and well-managed technology system. The TIG program also supports effective technology planning and management at LSC-funded organizations through the use of targeted assessment grants focused on improvements to technology systems and information security.
To be eligible for Technology Initiative Grants, applicants must be current grantees of LSC Basic Field-General, Basic Field-Migrant, or Basic Field-Native American grants. In addition, applicants must receive basic field funding of at least a one-year term, be up to date on reporting on any existing TIG-funded projects, and not have had a previous TIG terminated in the past three years for reporting or other performance issues.
Since LSC's TIG program was established in 2000, LSC has made over 859 grants totaling over $81 million. This grant program encourages organizations to use technology in innovative ways to:
1. Effectively and efficiently provide high-quality legal assistance to low-income persons and to promote access to the judicial system through legal information, advice, and representation.
2. Improve service delivery, quality of legal work, and management and administration of grantees.
3. Develop, test, and replicate innovative strategies that can enable grantees and state justice communities to improve clients' access to high-quality legal assistance.
Projects in this category (1) implement new or innovative approaches for using technology in legal services delivery; (2) enhance the effectiveness and efficiency of existing technologies so that they may be better used to increase the quality and quantity of services to clients; or (3) replicate, adapt, or provide added value to the work of prior technology projects. This includes, but is not limited to, the implementation and improvement of tested methodologies and technologies from previous TIG projects. We also encourage replication of proven technologies from non-LSC funded legal aid organizations as well as sectors outside the legal aid community. Applicants seeking continuation funding for their own existing TIG initiatives may wish to apply under the Adoption, Expansion and Enhancement Grants category discussed below.
LSC recommends a minimum amount for funding requests in this category of $40,000, but projects with lower budgets will be considered. There is no maximum amount for TIG funding requests that are within the total appropriation for TIG. All applicants in this category must submit a pre-application according to the process and requirements outlined in this notice.
LSC recognizes that grantees need sufficient technology infrastructure in place before they can take on a more innovative TIG project, and this grant category is for applicants that need to improve their basic technology infrastructure or their information security posture. The maximum funding amount for this category is $35,000. Technology Improvement Projects do not require a pre-application.
In 2023, LSC piloted a new category, called Adoption, Expansion, and Enhancement Grants, to provide continuation funding for those TIG projects that have moved beyond the proof-of-concept phase and demonstrated excellent results. This category is continuing in 2024. This funding allows successful TIG grantees to further build upon a specific project and its technologies, ensure that their TIG-funded work is effectively integrated into the service delivery system, and complete the project activities necessary to ensure the initiative's long-term success.
Adoption, Expansion, and Enhancement Grants are available to current TIG recipients and to recipients of recently completed TIG projects. Applicants seeking to enhance a non-TIG initiative or replicate another organization's project should apply under the General category. There is no pre-application for these proposals, but LSC encourages all prospective applicants to meet with their regional TIG program manager to discuss whether an Adoption, Expansion, and Enhancement grant may be a good fit. Applicants should be able to clearly demonstrate that their project was successful and that they have a reasonable plan for building on that success.
LSC recommends a minimum amount for funding requests in this category of $40,000, but projects with lower budgets will be considered. There is no maximum amount for TIG funding requests that are within the total appropriation for TIG. Adoption, Expansion, and Enhancement Grants do not require a pre-application.
A total of $5 million is available for 2024 TIG awards. LSC will not designate fixed or estimated amounts for the three different funding categories and will make grant awards for the three categories within the total amount of funding available.
Applicants to the TIG program may propose grant terms between 12 and 36 months for general category projects and between 12 and 18 months for Technology Improvement Projects. For the new Adoption, Expansion, and Enhancement category, the grant term is set at 24 months. The grant term for all
The TIG application process will be administered in LSC's unified grants management system, GrantEase. Applicants in the General TIG category must first submit a pre-application to LSC in GrantEase by March 11, 2024, at 11:59 p.m. ET, to be considered for a grant. After review by LSC staff, LSC's president decides which applicants will be asked to submit a full application. Applicants will be notified of approval to submit a full application by late April 2024. Full applications are due to LSC in the GrantEase system on June 3, 2024, at 11:59 p.m. ET. Once received, full applications will undergo a rigorous review by LSC staff. LSC's president makes the final decisions on funding for the Technology Initiative Grant program.
As noted above, applicants applying for Technology Improvement Project funding or in the Adoption, Expansion, and Enhancement category are not required to submit pre-applications. LSC will launch the online application system for Technology Improvement Projects by April 1, 2024, and set a submission deadline of May 19, 2024, at 11:59 p.m. ET. LSC will launch the online application system for Adoption, Expansion, and Enhancement grants in late April 2024 and applications will be due to LSC in GrantEase on June 3, 2024, at 11:59 p.m. ET. LSC follows a similar review process for applications in these categories, which includes LSC staff conducting a rigorous review of all proposals and the LSC president making final funding decisions.
LSC may consider a request to submit a pre-application after the deadline, but only if the applicant has submitted an email to
Applicants may submit multiple pre-applications. If applying for multiple grants that require pre-applications, applicants should submit separate pre-applications for each funding request.
Additional guidance and instructions on the pre-application and application processes for Technology Initiative Grants will be available and regularly updated at
In notice document 2023-28516 appearing on pages 812-814 in the issue of Friday, January 5, 2024, make the following correction:
On page 812 in the second column, after the
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice of certain Federal agency requests for records disposition authority (records schedules). We publish notice in the
We must receive responses on the schedules listed in this notice by March 11, 2024.
To view a records schedule in this notice, or submit a comment on one, use the following address:
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If you are unable to comment via
Kimberly Richardson, Strategy and Performance Division, by email at
We are publishing notice of records schedules in which agencies propose to dispose of records they no longer need to conduct agency business. We invite public comments on these records schedules, as required by 44 U.S.C. 3303a(a), and list the schedules at the end of this notice by agency and subdivision requesting disposition authority.
In addition, this notice lists the organizational unit(s) accumulating the records or states that the schedule has agency-wide applicability. It also provides the control number assigned to each schedule, which you will need if you submit comments on that schedule.
We have uploaded the records schedules and accompanying appraisal memoranda to the
We will post comments, including any personal information and attachments, to the public docket unchanged. Because comments are public, you are responsible for ensuring that you do not include any confidential or other information that you or a third party may not wish to be publicly posted. If you want to submit a comment with confidential information or cannot otherwise use the
We will consider all comments submitted by the posted deadline and consult as needed with the Federal agency seeking the disposition authority. After considering comments, we may or may not make changes to the proposed records schedule. The schedule is then sent for final approval by the Archivist of the United States. After the schedule is approved, we will post on
We will post schedules on our website in the Records Control Schedule (RCS) Repository, at
Each year, Federal agencies create billions of records. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval. Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. The records schedules authorize agencies to preserve records of continuing value in the National Archives or to destroy, after a specified period, records lacking continuing administrative, legal, research, or other value. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
Agencies may not destroy Federal records without the approval of the Archivist of the United States. The Archivist grants this approval only after thorough consideration of the records' administrative use by the agency of origin, the rights of the Government and of private people directly affected by the Government's activities, and whether or not the records have historical or other value. Public review and comment on these records schedules is part of the Archivist's consideration process.
1. Department of Defense, Defense Contract Audit Agency, Records related to Security and Intelligence (DAA-0372-2022-0001).
2. Department of Health and Human Services, Office of Medicare Hearings and Appeals, Administrative Law Judge and Attorneys Files (DAA-0468-2023-0003).
3. Department of Homeland Security, Federal Emergency Management Agency, Mission Training Records (DAA-0311-2022-0001).
4. Department of Homeland Security, U.S. Citizenship and Immigration Services, Teacher Training for Citizenship Education Records (DAA-0566-2022-0002).
5. Department of Homeland Security, U.S. Customs and Border Protection, Promissory Notes (DAA-0568-2023-0003).
6. Department of the Navy, Agency-Wide, Telecommunications and Information Technology (DAA-NU-2019-0009).
7. Central Intelligence Agency, Agency-wide, Mission Related Data (DAA-0263-2018-0001).
8. National Security Agency, Agency-wide, Transaction Monitoring (DAA-0457-2024-0001).
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a request for renewal of an existing collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, “Standard Specification for the Granting of Patent Licenses.”
Submit comments by February 22, 2024. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
David Cullison, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2023-0064 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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• NRC's PDR: The PDR, where you may examine and order copies of publicly available documents, is open by appointment. To make an appointment to visit the PDR, please send an email to
• NRC's Clearance Officer: A copy of the collection of information and related instructions may be obtained without charge by contacting the NRC's Clearance Officer, David C. Cullison, Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, 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 comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), the NRC recently submitted a request for renewal of an existing collection of information to OMB for review entitled, “10 CFR part 81, `Standard Specification for the Granting of Patent Licenses.'” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
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For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Monthly notice.
Pursuant to section 189a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (NRC) is publishing this regular monthly 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 (NSHC), notwithstanding the pendency before the Commission of a request for a hearing from any person.
Comments must be filed by February 22, 2024. A request for a hearing or petitions for leave to intervene must be filed by March 25, 2024. This monthly notice includes all amendments issued, or proposed to be issued, from December 8, 2023, to January 4, 2024. The last monthly notice was published on December 26, 2023.
You may submit comments by any of the following methods however, the NRC encourages electronic comment submission through the Federal rulemaking website:
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Kay Goldstein, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-1506; email:
Please refer to Docket ID NRC-2024-0025, facility name, unit number(s), docket number(s), 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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The NRC encourages electronic comment submission through the Federal rulemaking website (
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.
For the facility-specific amendment requests shown in this notice, the Commission finds that the licensees' analyses provided, consistent with section 50.91 of title 10 of
The Commission is seeking public comments on these proposed determinations. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determinations.
Normally, the Commission will not issue the amendments until the expiration of 60 days after the date of publication of this notice. The Commission may issue any of these license amendments before expiration of the 60-day period provided that its final determination is that the amendment involves NSHC. In addition, the Commission may issue any of these amendments 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 on any of these amendments prior to the expiration of either the comment period or the notice period, it will publish in the
Within 60 days after the date of publication of this notice, any person (petitioner) whose interest may be affected by any of these actions may file a request for a hearing and petition for leave to intervene (petition) with respect to that 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. If a petition is filed, the Commission or a presiding officer will rule on the petition and, if appropriate, a notice of a hearing will be issued.
Petitions must be filed no later than 60 days from the date of publication of this notice in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document. 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).
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, which will serve to establish when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the
A State, local governmental body, Federally recognized Indian Tribe, or designated agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h) no later than 60 days from the date of publication of this notice. 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).
For information about filing a petition and about participation by a person not a party under 10 CFR 2.315, see ADAMS Accession No. ML20340A053 (
All documents filed in NRC adjudicatory proceedings, including documents filed by an interested State, local governmental body, Federally recognized Indian Tribe, or designated agency thereof that requests to participate under 10 CFR 2.315(c), must be filed in accordance with 10 CFR 2.302. 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, unless an exemption permitting an alternative filing method, as further discussed, is granted. Detailed guidance on electronic submissions is located in the “Guidance for Electronic Submissions to the NRC” (ADAMS Accession No. ML13031A056 and on the NRC's public 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 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 in accordance with 10 CFR 2.302(b)-(d). Participants filing adjudicatory documents in this manner are responsible for serving their documents on all other participants. Participants granted an exemption under 10 CFR 2.302(g)(2) must still meet the electronic formatting requirement in 10 CFR 2.302(g)(1), unless the participant also seeks and is granted an exemption from 10 CFR 2.302(g)(1).
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket, which is publicly available at
The following table provides the plant name, docket number, date of application, ADAMS accession number, and location in the application of the licensees' proposed NSHC determinations. For further details with respect to these license amendment applications, see the applications for amendment, which are available for public inspection in ADAMS. For additional direction on accessing information related to this document, see the “Obtaining Information and Submitting Comments” section of this document.
During the period since publication of the last monthly 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 NSHC determination, and opportunity for a hearing in connection with these actions, were 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 in the safety evaluation for the amendment.
For further details with respect to each action, see the amendment and associated documents such as the Commission's letter and safety evaluation, which may be obtained using the ADAMS accession numbers indicated in the following table. The safety evaluation will provide the ADAMS accession numbers for the application for amendment and the
Since publication of the last monthly notice, the Commission has issued the following amendment. The Commission has determined for this amendment 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 circumstances or emergency situation 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 NSHC determination, and opportunity for a hearing.
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 (an emergency situation), the Commission may not have had an opportunity to provide for public comment on its NSHC determination. In such case, the license amendment has been issued without opportunity for comment prior to issuance. Nonetheless, the State has been consulted by telephone whenever possible.
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 NSHC is involved.
For those amendments that involve an emergency situation, the Commission is now providing an opportunity to comment on the final NSHC determination for each action; comments should be submitted in accordance with Section I of this notice within 30 days of the date of this notice. Any comments received within 30 days of the date of publication this notice will be considered.
For those amendments that have not been previously noticed in the
Unless otherwise indicated, the Commission has determined that the amendment satisfies 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 this amendment. 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 in the safety evaluation for the amendment.
For further details with respect to these actions, see the amendment and associated documents such as the Commission's letter and safety evaluation, which may be obtained using the ADAMS accession numbers indicated in the following table. The safety evaluation will provide the ADAMS accession number(s) for the application for amendment and the
For the Nuclear Regulatory Commission.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend a representation relating to the Grayscale Bitcoin Trust (BTC) (the “Trust”), shares of which are currently listed and traded on the Exchange pursuant to NYSE Arca Rule 8.201-E. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Commission approved the listing and trading of shares of the Trust (the “Shares”) on the Exchange pursuant to NYSE Arca Rule 8.201-E on January 10, 2024.
The purpose of this rule filing is to amend a representation set forth in the Exchange's previous rule filing to list and trade Shares of the Trust.
The Exchange proposes to amend this representation to redefine Cash Account to remove reference to Grayscale Securities, LLC, such that the term Cash Account means the account maintained by the Transfer Agent for purposes of receiving cash from, and distributing cash to, Authorized Participants in connection with creations and redemptions pursuant to Cash Orders. This proposed change is intended to clarify that the Commission has not approved Grayscale Securities, LLC or any other broker-dealer to own or operate the Cash Account used to transfer cash to the entity purchasing Bitcoin as part of the creation process or receive cash from the entity that buys or sells Bitcoin as part of the redemption process. The purchase and sale of Bitcoin as part of the creation and redemption process will be undertaken by an entity that is not registered as a broker-dealer. The Exchange believes that this proposed change would promote clarity and transparency with respect to the operation of the Cash Account, to the benefit of all market participants.
Except for this change, all other representations in Amendment No. 2 remain unchanged and will continue to constitute continuing listing requirements. In addition, the Trust will continue to comply with the terms of the Approval Order and the requirements of Rule 8.201-E.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes the proposed rule change is designed to remove impediments to and perfect the mechanism of a free and open market and, in general, to protect investors and the public interest because it would update a representation in Amendment
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. As noted above, the proposed rule change is intended only to clarify a representation regarding the Cash Account and would facilitate the continued listing and trading of Shares of the Fund on the Exchange, thereby promoting competition among various exchange-traded products, to the benefit of investors and the marketplace.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (“PRA”) (44 U.S.C. 3501
Rule 13h-1 and Form 13H under Section 13(h) of the Exchange Act established a large trader reporting framework.
The identification, recordkeeping, and reporting framework provides the Commission with a mechanism to identify large traders and obtain additional information on their trading activity. Specifically, the system requires large traders to identify themselves to the Commission and file certain interim updates with the Commission on Form 13H. Upon receipt of Form 13H, the Commission issues a unique identification number to the large trader, which the large trader then provides to its registered broker-dealers. Certain registered broker-dealers are required to maintain transaction records for each large trader and are required to report that information to the Commission upon request.
The respondents to the collection of information required by Rule 13h-1 and Form 13H are large traders and registered broker-dealers. The Commission estimates that the total annual time burden associated with Rule 13h-1 and Form 13H is approximately 131,415 hours per year. This burden is comprised of 31,140 hours for initial filings by large traders on Form 13H, 75,300 hours for updates by large traders, 22,200 hours for broker-dealer reporting, and 2,775 hours for broker-dealer monitoring.
Compliance with Rule 13h-1 is mandatory. The information collection under proposed Rule 13h-1 is considered confidential subject to the limited exceptions provided by the Freedom of Information Act.
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 estimates of the burden of the proposed 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 by March 25, 2024.
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: David Bottom, Director/Chief Information Officer, Securities and Exchange Commission, c/o John Pezzullo, 100 F Street NE, Washington, DC 20549, or send an email to:
On September 27, 2023, New York Stock Exchange LLC (the “Exchange” or “NYSE”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
Pursuant to the provisions of Section 19(b)(1) under the Act,
The Exchange has designated this proposed rule change as “non-controversial” under Section 19(b)(3)(A) of the Act
The text of the proposed rule change is available at the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
IEX proposes to extend the temporary remote inspection relief of Supplementary Material .15 to IEX Rule 5.110 to IEX Members to include calendar year 2024 inspection obligations through the earlier of the effective date of the Remote Inspections Pilot Program, or June 30, 2024. IEX makes this proposal to provide its Members continuity related to conducting inspections as part of satisfying the obligations of IEX Rule 5.110(c) (Internal Inspections) at offices and locations requiring inspection during the first half of calendar year 2024.
The COVID-19 pandemic caused a host of operational disruptions to the securities industry and impacted IEX Members, regulators, investors, and other stakeholders. In response to the pandemic, IEX adopted Supplementary Material .15 of IEX Rule 5.110 to provide Members the temporary option of satisfying their inspection obligations for offices of supervisory jurisdiction, branch offices, or non-branch locations under IEX Rule 5.110 (Supervision) remotely for calendar years 2021, 2022, and 2023, subject to specified conditions,
The pandemic accelerated the industry's adoption of a broad remote work environment and IEX recognizes that the pandemic has profoundly changed attitudes on where work can occur. As a result of this change many firms have adopted, in varying scale, hybrid work models involving personnel who are working at least part time from alternative work locations (
On November 17, 2023, the Commission approved the Remote Inspections Pilot Program.
In sum, as calendar year 2024 begins, the proposed extension of Supplementary Material .15 to IEX Rule 5.110 would provide firms continuity in meeting their inspection obligations and would allow FINRA time to operationalize the Remote Inspections Pilot Program. Relatedly, the proposed extension would give time for: (1) firms that are planning to participate in the Remote Inspections Pilot Program to implement the processes needed to comply with the proposed terms therein; and (2) firms that are not planning to participate or are excluded from participating in the Remote Inspections Pilot Program, to prepare to resume conducting on-site inspections of their offices and locations as part of satisfying the obligations of IEX Rule 5.110(c).
IEX is not proposing to amend the other conditions of the temporary rule. The current conditions of the supplementary material for firms that elect to conduct remote inspections would remain unchanged: such firms must amend or supplement their written supervisory procedures for remote inspections, use remote inspections as part of an effective supervisory system, and maintain the required documentation. IEX continues to believe this temporary remote inspection option is a reasonable alternative for firms to fulfill their IEX Rule 5.110(c) obligations under the current circumstances described above. This proposed extension is designed to maintain the investor protection objectives of the inspection requirements under these circumstances. As part of those objectives, firms should consider whether, under their particular operating conditions, continued reliance on Supplementary Material .15 to IEX Rule 5.110 to conduct remote inspections would be reasonable under the circumstances. For example, firms with offices that are open to the public or that are otherwise doing business as usual should consider whether some in-person inspections would be feasible and add value to the firms' supervisory program. IEX emphasizes that the inspection requirement is one aspect of a firm's overall supervisory system, and that the inspection, whether done remotely under Supplementary Material .15 to IEX Rule 5.110 or in accordance with the proposed Remote Inspections Pilot Program, or on-site, would be held to the existing standards of review under Supplementary Material .12 to IEX Rule 5.110 (Standards for Reasonable Review).
IEX believes that the proposed rule change is consistent with the provisions of Section 6(b)
IEX does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is not designed to address any competitive issue but to align the Exchange's rules with those of FINRA, which will assist FINRA in its oversight work done pursuant to a regulatory services agreement with IEX. The proposed rule change will also provide for consistent application of the Exchange's supervision rules with those of FINRA, on which they are based. Consequently, the Exchange does not believe that the proposed change implicates competition at all.
Written comments on the proposed rule change were neither solicited nor received.
The Exchange has designated this rule filing as non-controversial under Section 19(b)(3)(A)
The Exchange believes that this filing is non-controversial because it raises no novel issues and is consistent with FINRA rules previously approved by or filed with the Commission. In particular, the purpose of the proposed rule change is to harmonize with and conform to FINRA rules. The Exchange believes that the proposal promotes the protection of investors as it will harmonize the Exchange's supervision rules with those of FINRA, which will simplify the oversight process conducted by FINRA pursuant to a regulatory services agreement with the Exchange. Moreover, the Exchange does not believe that the proposed rule change implicates competition at all because the proposed change aligns the Exchange's rules with those of FINRA, which will assist it in its oversight work done pursuant to such regulatory services agreement.
A proposed rule change filed under Rule 19b-4(f)(6)
Since the proposed rule change would address IEX Members' ability to conduct remote inspections for any inspections to be conducted through the earlier of the effective date of the Remote Inspections Pilot Program, or June 30, 2024, waiving the 30-day operative delay would help ensure that IEX Members could plan their 2024 inspection program and conduct remote inspections under a harmonized rule set, while at the same time helping ensure that its Members continue to perform their supervisory obligations. The Exchange stated that the proposed rule change does not present any new or novel issues because IEX is harmonizing its supervision rules with those of FINRA, on which they are based. IEX further stated that the proposed rule change would provide only temporary relief during the period in which IEX harmonizes its supervision rules with FINRA. For these reasons, the Commission believes that waiver of the 30-day operative delay for this proposed rule change is consistent with the protection of investors and the public interest. Accordingly, the Commission hereby waives the 30-day operative delay and designates the proposed rule change operative upon filing.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Publishing in the FR of 1/22/24.
Wednesday, January 24, 2024, at 10:00 a.m.
The Open Meeting scheduled for Wednesday, January 24, 2024, at 10:00 a.m. has been changed to Wednesday, January 24, 2024 at 9:15 a.m.
For further information; please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1)
The Exchange proposes to modify Rule 980NYP (Electronic Complex Order Trading) to specify additional trading interest that would result in the early end of a Complex Order Auction (“COA”). The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to modify Rule 980NYP (Electronic Complex Order Trading) to specify additional trading interest that would result in the early end of a Complex Order Auction (“COA”).
Rule 980NYP reflects how Electronic Complex Orders (“ECOs”) will trade on the Exchange
The Exchange proposes to modify Rule 980NYP(f)(3) to add new paragraph (E), which would provide that a COA in progress will end early any time there is a Complex Qualified Contingent Cross (“QCC”) Order submitted in the same complex strategy as the COA Order.
As noted above, until a COA concludes, the Book is not updated to reflect any COA Order executions (with price-improving auction interest or with resting ECO or leg market interest) or any balance of the COA Order ranking in the Book. Thus, to allow the later-arriving Complex QCC Order to be evaluated based on the most up-to-date Book, the Exchange proposes to end a COA upon the arrival of a Complex QCC Order in the same complex strategy. This proposed early termination would allow the Exchange to incorporate executions from the COA, or any remaining balance of the COA Order, to conduct the requisite price validations per Rule 900.3NYP(g)(1)(D) for the Complex QCC Order (
The proposed rule change would be consistent with current Rule 980NYP(f)(3)(A)-(D), which describes four circumstances that cause the early end of a COA to ensure that later-arriving interest does not trade ahead of a COA Order and to ensure that the Book is updated to reflect executions resulting from the COA. The Exchange believes that the proposed rule change achieves this same objective. As with the existing early end scenarios, the proposed early end of a COA does not prevent the COA Order from trading with any interest, including price-improving interest, that arrived prior to the early termination (
The Exchange notes that at least two other options exchanges offer both Complex QCC Orders and COA functionality and each has opted for a different way to address the race condition posed by these two features. For example, per the technical specifications for complex orders executed on Cboe Exchange Inc. (“Cboe”), a Complex QCC Order is “immediately executed or canceled on entry” and is not “restricted by other auction types going on at the same time” and, as such, the price validations on the later-arriving Complex QCC are (apparently) done without consideration of the COA process and its potential impact on Cboe's Complex Order Book.
The Exchange believes that its proposal to codify by rule its distinct approach to resolving the same issue faced by Cboe and MIAX would provide the best protection to its market participants. Specifically, by ending a COA upon the arrival of a Complex QCC Order in the same complex strategy, the Exchange ensures that the COA Order executes to the extent possible and that the Exchange relies on the most-up-to-date Book (following executions in the COA) to validate the price of the Complex QCC. This proposed approach prevents the Exchange from ignoring complex orders being auctioned when conducting price validations for later-arriving Complex QCC Orders or from rejecting potentially valid Complex QCC Orders that arrive during a COA. As such, the Exchange believes that its proposal would help preserve—and maintain investor's confidence in—the integrity of the Exchange's local market. As such, the Exchange believes that the proposed change would benefit investors and would not place an undue burden on competition because investors are free to direct their complex order flow to other options exchanges, including Cboe or MIAX. Likewise, once this proposed rule change is effective, other options exchanges, including Cboe and MIAX, are free to copy the order handling proposed herein.
The proposed rule change is consistent with Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange believes that the proposed amendment to Rule 980NYP(f)(3) regarding the additional circumstance that would cause a COA to end early would promote just and equitable principles of trade because it would ensure that the COA Order is executed to the extent possible and, if applicable, is ranked in the Consolidated Book before the Exchange evaluates the later-arriving Complex QCC Order. As noted above, until the COA concludes, the Book is not updated to reflect any COA Order executions (with price-improving auction interest or with resting ECO or leg market interest) or any balance of the COA Order ranking in the Book. This proposed early termination would then allow the Exchange to incorporate executions from the COA, or any remaining balance of the COA Order, to conduct the requisite price validations
As noted herein, current Rule 980NYP(f)(A)-(D) describes four circumstances under which a COA must end early to ensure that later-arriving interest does not trade ahead of a COA Order and to ensure that the Book is updated to reflect executions resulting from the COA. The Exchange believes that the proposed rule change achieves this same objective. As with the existing early end scenarios, the proposed early end of a COA does not prevent the COA Order from trading with any interest, including price-improving interest, that arrived prior to the early termination (
At least two other options exchanges have taken different approaches to address how to handle the arrival of a Complex QCC Order while a Complex Order Auction is in progress. As noted herein, the Exchange believes that its proposed approach would provide the best protection to investors because ending a COA upon receipt of a Complex QCC Order would ensure that the COA Order executes to the extent possible and that the Exchange relies on the most-up-to-date Book (following executions in the COA) to validate the price of the Complex QCC Order. Thus, the Exchange believes the proposed rule change would promote just and equitable principles of trade because it would help preserve—and maintain investor's confidence in—the integrity of the Exchange's local market.
Finally, the Exchange believes that modifying the rule as proposed would add clarity and transparency to Rule 980NYP regarding the handling of COA Orders.
The Exchange does not believe that the proposed rule change will impose any burden on intra-market competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change would apply in the same manner to all similarly-situated market participants that opt to utilize the COA process, the use of which is voluntary and, as such, market participants are not required to avail themselves of this process.
The Exchange does not believe that its proposed rule change will impose any burden on inter-market competition that is not necessary or appropriate in furtherance of the purposes of the Act because the proposed change is designed to ensure that both a COA Order and a Complex QCC Order receive timely executions based on current market conditions. To the extent that other options exchanges, like Cboe or MIAX, offer complex order auctions and Complex QCC Orders, such exchanges are free to adopt (if they have not already done so) the early termination provision proposed herein.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995 we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments up to February 22, 2024.
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, to Irum Zaidi, 1800 G St. NW, Suite 10300, SA-22, Washington, DC 20006, who may be reached on 202-663-2588 or at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The U.S. President's Emergency Plan for AIDS Relief (PEPFAR) was established through enactment of the United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act (Pub. L. 108-25), as amended by the Tom Lantos and Henry J. Hyde United States Global Leadership Against HIV/AIDS, Tuberculosis, and Malaria Reauthorization Act (Pub. L. 110-293) (HIV/AIDS Leadership Act), as amended by the PEPFAR Stewardship and Oversight Act (Pub. L. 113-56), and as amended and reauthorized for a third time by the PEPFAR Extension Act (Pub. L. 115-305) to support the global response to HIV/AIDS. In order to improve program monitoring, PEPFAR added reporting of expenditures by program area to the current routine reporting of program results for the annual report. Data are collected from implementing partners in countries with PEPFAR programs using a standard tool (DS-4213) via an electronic web-based interface into which users upload data. These expenditures are analyzed by partner for all PEPFAR program areas. These analyses then feed into partner and program reviews at the country level for monitoring and evaluation on an ongoing basis. Summaries of these data provide key information about program costs under PEPFAR on a global level. Applying expenditure results will improve strategic budgeting, identification of efficient means of delivering services, and accuracy in defining program targets; and will inform allocation of resources to ensure the program is accountable and using public funds for maximum impact.
Data will continue to be collected in a web-based interface available to all partners receiving funds under PEPFAR. Implementing partners (IPs) prefer the Microsoft Excel template based data collection process. The requirements in the Excel template have been reduced with IP input to only request critical information. By being able to download a template, prime IPs responsible to complete the submission are more effectively able to collaborate quickly with other key personnel and coordinate with their subrecipients to enter the data for the full amount of PEPFAR funding expended during the prior fiscal year. This approach also proves helpful where internet connectivity is not strong. After completing the Excel template, IPs upload the data to an automated system that further checks the data entered for quality and completeness. Automated checks reduce the time needed by IPs to complete the data cleaning process. Aggregate data is
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Notice of establishment of public docket.
This Notice announces the establishment of FRA's emergency relief docket (ERD) for calendar year 2024. The designated ERD for calendar year 2024 is docket number FRA-2024-0001.
See
On May 19, 2009, FRA published a direct final rule establishing ERDs and the procedures for handling petitions for emergency waivers of safety rules, regulations, or standards during an emergency situation or event. 74 FR 23329. That direct final rule became effective on July 20, 2009, and made minor modifications to 49 CFR 211.45 in FRA's Rules of Practice in 49 CFR part 211. Section 211.45(b) provides that each calendar year FRA will establish an ERD in the publicly accessible DOT docket system (available at
As detailed in § 211.45, if the FRA Administrator determines an emergency event as defined in 49 CFR 211.45(a) has occurred, or that an imminent threat of such an emergency occurring exists, and public safety would benefit from providing the railroad industry with operational relief, the emergency waiver procedures of 49 CFR 211.45 will go into effect. In such an event, the FRA Administrator will issue a statement in the ERD indicating the emergency waiver procedures are in effect and FRA will make every effort to post the statement on its website at
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 association, business, labor union, etc.). Under 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
Under part 211 of title 49 Code of Federal Regulations (CFR), this document provides the public notice that on December 14, 2023, North County Transit District (NCTD) petitioned the Federal Railroad Administration (FRA) for an extension of a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 240 (Qualification and Certification of Locomotive Engineers) and part 242 (Qualification and Certification of Conductors). The relevant Docket Number is FRA-2018-0072.
Specifically, NCTD requests relief required to continue participation in FRA's Confidential Close Call Reporting System (C
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested parties desire an opportunity for oral comment and a public hearing, 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 at
Communications received by March 25, 2024 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 association, business, labor union, etc.). Under 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
Issued in Washington, DC.
Federal Transit Administration, Department of Transportation.
Notice of renewal of the charter for the Transit Advisory Committee for Safety.
The Federal Transit Administration (FTA) announces the renewal of the Transit Advisory Committee for Safety (TRACS) charter. The current TRACS charter expires on February 2, 2024. The U.S. Department of Transportation and FTA are committed to ensuring the safety of the Nation's public transportation systems and reducing the safety risk to both riders and transit workers. The Secretary of Transportation (Secretary) has determined that renewing TRACS is necessary and in the public interest.
This charter will be effective for two years from the date it is filed with Congress and uploaded into the General Services Administration Federal Advisory Committee Act (FACA) Database.
Joseph DeLorenzo, TRACS Designated Federal Officer and FTA Associate Administrator for Transit Safety and Oversight, (202) 366-1783,
This notice announces the Secretary's renewal of TRACS as a Federal Advisory Committee in accordance with FACA (Pub. L. 92-463, 5 U.S.C. ch. 10) to provide information, advice, and recommendations to the Secretary and the FTA Administrator on matters relating to the safety of public transportation systems. TRACS continues its task of providing advice and recommendations on improvements and innovations in transit safety. TRACS reviews current challenges and innovations in public transportation and provides recommendations that FTA can implement in support of safety in the public transportation sector.
This notice is provided in accordance with the Federal Advisory Committee Act. Please see the TRACS website for additional information at
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the names of a person and vessels that have been placed on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of this person and vessels are blocked, and U.S. persons are generally prohibited from engaging in transactions with them.
See
OFAC: Bradley T. Smith, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or the Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The Specially Designated Nationals and Blocked Persons List and additional information concerning OFAC sanctions programs are available on OFAC's website (
On January 18, 2024, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following person is blocked under the relevant sanctions authority listed below.
1. HENNESEA HOLDINGS LIMITED, 1229, Al Sila Tower, Adgm Square, Al Maryah Island, Abu Dhabi, United Arab Emirates; Organization Established Date 2022; License 000008900 (United Arab Emirates); Economic Register Number (CBLS) 11978506 (United Arab Emirates) [RUSSIA-EO14024].
Designated pursuant to section 1(a)(i) of Executive Order 14024 of April 15, 2021, “Blocking Property With Respect To Specified Harmful Foreign Activities of the Government of the Russian Federation,” 86 FR 20249, 3 CFR, 2021 Comp., p. 542 (Apr. 15, 2021) (E.O. 14024) for operating or having operated in the marine sector of the Russian Federation economy.
On January 18, 2024, OFAC also identified the following vessels as property in which a blocked person has an interest, under the relevant sanctions authority listed below:
1. ARISTO (5LJI7) Chemical/Products Tanker Liberia flag; Vessel Registration Identification IMO 9327413; MMSI 636022549 (vessel) [RUSSIA-EO14024] (Linked To: HENNESEA HOLDINGS LIMITED).
Identified as property in which Hennesea Holdings Limited, a person whose property and interests in property are blocked pursuant to E.O. 14024, has an interest.
2. HAI II (D5HH9) Crude Oil Tanker Liberia flag; Vessel Registration Identification IMO 9259599; MMSI 636016693 (vessel) [RUSSIA-EO14024] (Linked To: HENNESEA HOLDINGS LIMITED).
Identified as property in which Hennesea Holdings Limited, a person whose property and interests in property are blocked pursuant to E.O. 14024, has an interest.
3. HS ARGE (5LIK5) Crude Oil Tanker Liberia flag; Vessel Registration Identification IMO 9299745; MMSI 636022360 (vessel) [RUSSIA-EO14024] (Linked To: HENNESEA HOLDINGS LIMITED).
Identified as property in which Hennesea Holdings Limited, a person whose property and interests in property are blocked pursuant to E.O. 14024, has an interest.
4. HS ATLANTICA (5LIP5) Crude Oil Tanker Liberia flag; Vessel Registration Identification IMO 9322839; MMSI 636022401 (vessel) [RUSSIA-EO14024] (Linked To: HS ATLANTICA LIMITED; Linked To: HENNESEA HOLDINGS LIMITED).
Identified as property in which Hennesea Holdings Limited, a person
5. HS BURAQ (5LIK9) Products Tanker Liberia flag; Vessel Registration Identification IMO 9381732; MMSI 636022364 (vessel) [RUSSIA-EO14024] (Linked To: HENNESEA HOLDINGS LIMITED).
Identified as property in which Hennesea Holdings Limited, a person whose property and interests in property are blocked pursuant to E.O. 14024, has an interest.
6. HS ESBERG (5LIN6) Products Tanker Liberia flag; Vessel Registration Identification IMO 9410894; MMSI 636022386 (vessel) [RUSSIA-EO14024] (Linked To: HENNESEA HOLDINGS LIMITED).
Identified as property in which Hennesea Holdings Limited, a person whose property and interests in property are blocked pursuant to E.O. 14024, has an interest.
7. HS EVERETT (5LIP7) Crude Oil Tanker Liberia flag; Vessel Registration Identification IMO 9410870; MMSI 636022403 (vessel) [RUSSIA-EO14024] (Linked To: HENNESEA HOLDINGS LIMITED).
Identified as property in which Hennesea Holdings Limited, a person whose property and interests in property are blocked pursuant to E.O. 14024, has an interest.
8. HS GLORY (D5OH4) Crude Oil Tanker Liberia flag; Vessel Registration Identification IMO 9249087; MMSI 636018127 (vessel) [RUSSIA-EO14024] (Linked To: HENNESEA HOLDINGS LIMITED).
Identified as property in which Hennesea Holdings Limited, a person whose property and interests in property are blocked pursuant to E.O. 14024, has an interest.
9. HS LEGEND (5LIK7) Crude Oil Tanker Liberia flag; Vessel Registration Identification IMO 9381744; MMSI 636022362 (vessel) [RUSSIA-EO14024] (Linked To: HENNESEA HOLDINGS LIMITED).
Identified as property in which Hennesea Holdings Limited, a person whose property and interests in property are blocked pursuant to E.O. 14024, has an interest.
10. HS STAR (D5RV6) Crude Oil Tanker Liberia flag; Vessel Registration Identification IMO 9274446; MMSI 636018885 (vessel) [RUSSIA-EO14024] (Linked To: HENNESEA HOLDINGS LIMITED).
Identified as property in which Hennesea Holdings Limited, a person whose property and interests in property are blocked pursuant to E.O. 14024, has an interest.
11. LA PRIDE (5LHW6) Crude Oil Tanker Liberia flag; Vessel Registration Identification IMO 9274616; MMSI 636022251 (vessel) [RUSSIA-EO14024] (Linked To: HENNESEA HOLDINGS LIMITED).
Identified as property in which Hennesea Holdings Limited, a person whose property and interests in property are blocked pursuant to E.O. 14024, has an interest.
12. MONA (5LIS6) Chemical/Oil Tanker Liberia flag; Vessel Registration Identification IMO 9314818; MMSI 636022424 (vessel) [RUSSIA-EO14024] (Linked To: HENNESEA HOLDINGS LIMITED).
13. NELLIS (5LJI8) Chemical/Oil Tanker Liberia flag; Vessel Registration Identification IMO 9322267; MMSI 636022550 (vessel) [RUSSIA-EO14024] (Linked To: HENNESEA HOLDINGS LIMITED).
Identified as property in which Hennesea Holdings Limited, a person whose property and interests in property are blocked pursuant to E.O. 14024, has an interest.
14. OSPEROUS (5LHE4) Crude Oil Tanker Liberia flag; Vessel Registration Identification IMO 9412995; MMSI 636022098 (vessel) [RUSSIA-EO14024] (Linked To: HENNESEA HOLDINGS LIMITED).
Identified as property in which Hennesea Holdings Limited, a person whose property and interests in property are blocked pursuant to E.O. 14024, has an interest.
15. PERIA (5LIZ6) Crude Oil Tanker Liberia flag; Vessel Registration Identification IMO 9322827; MMSI 636022479 (vessel) [RUSSIA-EO14024] (Linked To: HENNESEA HOLDINGS LIMITED).
Identified as property in which Hennesea Holdings Limited, a person whose property and interests in property are blocked pursuant to E.O. 14024, has an interest.
16. SARA II (5LJI4) Chemical/Oil Tanker Liberia flag; Vessel Registration Identification IMO 9301615; MMSI 636022546 (vessel) [RUSSIA-EO14024] (Linked To: HENNESEA HOLDINGS LIMITED).
Identified as property in which Hennesea Holdings Limited, a person whose property and interests in property are blocked pursuant to E.O. 14024, has an interest.
17. SENSUS (5LHJ7) Products Tanker Liberia flag; Vessel Registration Identification IMO 9296585; MMSI 636022146 (vessel) [RUSSIA-EO14024] (Linked To: HENNESEA HOLDINGS LIMITED).
Identified as property in which Hennesea Holdings Limited, a person whose property and interests in property are blocked pursuant to E.O. 14024, has an interest.
18. UZE (5LHB3) Chemical/Oil Tanker Liberia flag; Vessel Registration Identification IMO 9323338; MMSI 636022072 (vessel) [RUSSIA-EO14024] (Linked To: HENNESEA HOLDINGS LIMITED).
Identified as property in which Hennesea Holdings Limited, a person whose property and interests in property are blocked pursuant to E.O. 14024, has an interest.
Office of Foreign Assets Control, Treasury.
Notice.
The U.S. Department of the Treasury's Office of Foreign Assets Control (OFAC) is publishing the name of one person that has been placed on OFAC's Specially Designated Nationals and Blocked Persons List (SDN List) based on OFAC's determination that one or more applicable legal criteria were satisfied. All property and interests in property subject to U.S. jurisdiction of this person are blocked, and U.S. persons are generally prohibited from engaging in transactions with them. Additionally, OFAC is publishing the names of one or more entities whose property and interests in property have been unblocked and who have been removed from the SDN List.
See
OFAC: Bradley T. Smith, Director, tel.: 202-622-2490; Associate Director for Global Targeting, tel.: 202-622-2420; Assistant Director for Licensing, tel.: 202-622-2480; Assistant Director for Regulatory Affairs, tel.: 202-622-4855; or Assistant Director for Sanctions Compliance & Evaluation, tel.: 202-622-2490.
The SDN List and additional information concerning OFAC sanctions programs are available on OFAC's website (
A. On January 17, 2024, OFAC determined that the property and interests in property subject to U.S. jurisdiction of the following person are blocked under the relevant sanctions authority listed below.
1. PIMENTEL MATA, Alberto; (a.k.a. PIMENTEL, Alberto), Guatemala; DOB 26 Oct 1981; POB San Jose, Costa Rica; nationality Guatemala; Gender Male; Passport 238670724 (Guatemala) expires 14 Jan 2024; National ID No. 2386707240101 (Guatemala) (individual) [GLOMAG].
Designated pursuant to section 1(a)(ii)(B)(1) of Executive Order (E.O.) 13818 of December 20, 2017, “Blocking the Property of Persons Involved in Serious Human Rights Abuse or Corruption,” 82 FR 60839 (Dec. 26, 2017) for being a foreign person who is a current or former government official, or a person acting for or on behalf of such an official, who is responsible for or complicit in, or has directly or indirectly engaged in, corruption, including the misappropriation of state assets, the expropriation of private assets for personal gain, corruption related to government contracts or the extraction of natural resources, or bribery.
B. On January 17, 2024, OFAC determined that the following entities would be removed from the SDN List and that their property and interests in property subject to U.S. jurisdiction are unblocked pursuant to E.O. 13818. These entities are no longer subject to the blocking provisions of Section 1(a) of E.O. 13818.
1. COMPANIA GUATEMALTECA DE NIQUEL, SOCIEDAD ANONIMA (a.k.a. COMPANIA GUATEMALTECA DE NIQUEL; a.k.a. GUATEMALAN NICKEL COMPANY; a.k.a. “CGN”), 9-55 Avenida Reforma Z.10, Guatemala City, Guatemala; Organization Established Date 22 Jun 1960; NIT # 335886 (Guatemala) [GLOMAG].
2. COMPANIA PROCESADORA DE NIQUEL DE IZABAL, S.A. (a.k.a. COMPANIA PROCESADORA DE NIQUEL; a.k.a. COMPANIA PROCESADORA DE NIQUEL DE IZABAL, SOCIEDAD ANONIMA; a.k.a. “PRONICO”), 9-55 Avenida Reforma Z.10, Guatemala City, Guatemala; Organization Established Date 03 Sep 2013; NIT # 83557008 (Guatemala) [GLOMAG].
3. MAYANIQUEL, SOCIEDAD ANONIMA, 12 Calle 2-25 Z.10, Guatemala City, Guatemala; Organization Established Date 03 Oct 1996; NIT # 8252149 (Guatemala) [GLOMAG].
Notice.
The Department of Veterans Affairs (VA), Center for Minority Veterans (CMV), is seeking nominations of qualified candidates to be considered for appointment as a member of the Advisory Committee on Minority Veterans (“the Committee”).
Nominations for membership on the Committee must be received no later than 5 p.m. EST on June 15, 2024.
All nomination packages should be emailed to
Mr. Dwayne Campbell and Mr. Ronald Sagudan, Center for Minority Veterans, Department of Veterans Affairs, 810 Vermont Ave., NW (00M), Washington, DC 20420, Telephone (202) 461-6191. A copy of the Committee charter and list of the current membership can be obtained by contacting Mr. Campbell or Mr. Sagudan or by accessing the website managed by CMV at
In carrying out the duties set forth, the Committee responsibilities include, but not limited to: (1) Advising the Secretary and Congress on VA's administration of benefits and provisions of healthcare, benefits, and services to minority Veterans.
(2) Providing a biennial report to Congress outlining recommendations, concerns and observations on VA's delivery of services to minority Veterans.
(3) Meeting with VA officials, Veteran Service Organizations, and other stakeholders to assess the Department's efforts in providing benefits and outreach to minority Veterans.
(4) Making periodic site visits and holding town hall meetings with Veterans to address their concerns.
Management and support services for the Committee are provided by the CMV.
CMV is requesting nominations for upcoming vacancies on the Committee. The Committee is currently composed of 12 members, in addition to ex-officio members. As required by statute, the members of the Committee are appointed by the Secretary from the general public, including:
(1) Representatives of Veterans who are minority group members;
(2) Individuals who are recognized authorities in fields pertinent to the needs of Veterans who are minority group members;
(3) Veterans who are minority group members and who have experience in a military theater of operations;
(4) Veterans who are minority group members and who do not have such experience; and
(5) Women Veterans who are minority group members recently separated from active military service.
Section 544 defines “minority group member” as an individual who is Asian American, Black, Hispanic, Native American (including American Indian, Alaska Native and Native Hawaiian), or Pacific-Islander American.
In accordance with section 544, the Secretary determines the number, terms of service, and pay and allowances of members of the Committee appointed by the Secretary, except that a term of service of any member shall not exceed three years. The Secretary may reappoint any member for additional terms of service.
Professional Qualifications: In addition to the criteria above, VA seeks—
(1) Diversity in professional and personal qualifications;
(2) Experience in military service and military deployments (please identify your Branch of Service and Rank);
(3) Current work with Veterans;
(4) Committee subject matter expertise;
(5) Emphasis on experience using VA Service and Benefits.
Nominations should be type written (one nomination per nominator). Nomination package should include: (1) a letter of nomination that clearly states the name and affiliation of the nominee, the basis for the nomination (
Individuals selected for appointment to the Committee shall be invited to serve a two-year term. Committee members will receive a stipend for attending Committee meetings, including per diem and reimbursement for travel expenses incurred.
The Department makes every effort to ensure that the membership of its Federal advisory committees is fairly balanced in terms of points of view represented and the committee's function. Every effort is made to ensure that a broad representation of geographic areas, males & females, racial and ethnic minority groups, and veterans with disabilities are given consideration for membership. Appointment to this Committee shall be made without discrimination because of a person's race, color, religion, sex (including gender identity, transgender status, sexual orientation, and pregnancy), national origin, age, disability, or genetic information. Nominations must state that the nominee is willing to serve as a member of the Committee and appears to have no conflict of interest that would preclude membership. An ethics review is conducted for each selected nominee.
Department of Veterans Affairs.
Notice of nominations for appointment to the Research Advisory Committee on Gulf War Veterans' Illnesses.
The Department of Veterans Affairs (VA) is seeking nominations of qualified candidates to be considered for appointment to the Research Advisory Committee on Gulf War Veterans' Illnesses (RACGWVI) (hereinafter in this section referred to as “the Committee”).
Nominations for membership on the Committee must be received no later than 5:00 p.m. EST on March 1, 2024.
All nominations should be emailed to
Dr. Karen Block, Designated Federal Officer, Gulf War Research Program, VA Office of Research and Development at
The Research Advisory Committee on Gulf War Veterans' Illnesses was established to provide advice and make recommendations to the Secretary of Veterans Affairs on proposed research studies, plans and strategies related to understanding and treating the health consequences of military service in the Southwest Asia theater of operations during the 1990-91 Gulf War (Operations Desert Shield and Desert Storm).
The expertise required of Committee membership includes, but is not limited to:
a. 1990-91 Gulf War Veterans and/or representatives of such Veterans;
b. Veterans of all eras;
c. Community leaders, professionals and other concerned stakeholders;
d. Members of the medical and scientific communities representing disciplines such as epidemiology, genetics, immunology, neurology, toxicology, dentistry, environmental health and justice, occupational and industrial hygiene; and
e. Experts in advanced medical and scientific technologies including artificial intelligence.
To the extent possible, the Secretary seeks members who have diverse professional and personal qualifications including but not limited to subject matter experts in the areas described above. We ask that nominations include any relevant experience information so that VA can ensure diverse Committee membership.
(1) A letter of nomination that clearly states the name and affiliation of the nominee, the basis for the nomination (
(2) The nominee's contact information, including name, mailing address, telephone numbers, and email address;
(3) The nominee's resume or curriculum vitae that is no more than three pages in length. The resume should show professional work experience, and Veterans service involvement, especially service that involves 1990-91 Gulf War Veterans' issues; and
(4) A one-page cover letter. The cover letter must summarize:
a. the nominee's interest in serving on the committee and contributions he/she can make to the work of the committee;
b. any relevant Veterans service activities he/she is currently engaged in;
c. the military branch affiliations and timeframe of military service (if applicable);
d. information about the nominee's personal and professional qualifications and background that would give her/him a diverse perspective on Gulf War Veterans' matters; and
e. a statement confirming that he/she is not a Federally-registered lobbyist.
The Department makes every effort to ensure that the membership of VA Federal advisory committees is diverse in terms of points of view represented and the committee's capabilities. Appointments to this Committee shall promote diversity, equity and inclusion and will be made without discrimination because of a person's race, color, religion, sex, sexual orientation, gender identity, national origin, age, disability, or genetic information. Nominations must state that the nominee is willing to serve as a member of the Committee and appears to have no conflict of interest that would preclude membership.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, NMFS hereby promulgates regulations to govern the incidental taking of marine mammals incidental to the Virginia Electric and Power Company, doing business as Dominion Energy Virginia (Dominion Energy), construction of the Coastal Virginia Offshore Wind Commercial (CVOW-C) Project (hereafter, the CVOW-C Project or the Project) in Federal and State waters offshore of Virginia, specifically within the Bureau of Ocean Energy Management (BOEM) Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS) Lease Area OCS-A 0483 (Lease Area) and along export cable routes to sea-to-shore transition points (collectively referred to as the “Project Area”), over the course of 5 years (February 5, 2024 through February 4, 2029). These regulations, which allow for the issuance of a Letter of Authorization (LOA) for the incidental take of marine mammals during construction-related activities within the Project Area during the effective dates of the regulations, 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, as well as requirements pertaining to the monitoring and reporting of such taking.
This rulemaking is effective from February 5, 2024, through February 4, 2029.
Kelsey Potlock, Office of Protected Resources, NMFS, (301) 427-8401.
A copy of Dominion Energy's Incidental Take Authorization (ITA) application, supporting documents, received public comments, and the proposed rulemaking, as well as a list of the references cited in this document, may be obtained online at:
This final rule, as promulgated, provides a framework under the authority of the MMPA (16 U.S.C. 1361
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). If such findings are made, NMFS must prescribe the permissible methods of taking (
As noted above, no serious injury or mortality is anticipated or authorized in this final rule. Relevant definitions of MMPA statutory and regulatory terms are included below:
•
•
•
•
•
•
Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for proposing and, if appropriate, issuing regulations and an associated LOA(s). This final rule establishes permissible methods of taking and mitigation, monitoring, and reporting requirements for Dominion Energy's construction activities.
The major provisions of this final rule are:
• The authorized take of marine mammals by Level A harassment and/or Level B harassment;
• No authorized take of marine mammals by mortality or serious injury;
• The establishment of a seasonal moratorium on pile driving of foundation piles during the months of the highest presence of North Atlantic right whales (
• A requirement for both visual and passive acoustic monitoring to occur by NOAA Fisheries-approved Protected Species Observers (PSOs) and Passive Acoustic Monitoring (PAM) operators (where required) before, during, and after select activities;
• A requirement of training for all Dominion Energy personnel to ensure marine mammal protocols and procedures are understood;
• The establishment of clearance and shutdown zones for all in-water construction activities to prevent or reduce the risk of Level A harassment and to minimize the risk of Level B harassment;
• A requirement to use sound attenuation devices during all foundation pile driving installation activities to reduce noise levels to those modeled assuming 10 decibels (dB);
• A delay to the start of foundation installation if a North Atlantic right whale is observed at any distance by PSOs or acoustically detected within the PAM Monitoring Zone (10 kilometer (km));
• A delay to the start of foundation installation if other marine mammals are observed entering or within their respective clearance zones;
• A requirement to shut down pile driving (if feasible) if a North Atlantic right whale is observed at any distance or if any other marine mammals are observed entering their respective shutdown zones;
• A requirement to conduct sound field verification (SFV) during foundation pile driving to measure
• A requirement to implement soft-starts during impact pile driving using the least amount of hammer energy necessary for installation;
• A requirement to implement ramp-up during the use of high-resolution geophysical (HRG) marine site characterization survey equipment;
• A requirement to monitor relevant Right Whale Sightings Advisory System and Channel 16, as well as reporting any sightings to the sighting network;
• A requirement to implement various vessel strike avoidance measures;
• A requirement to implement measures during fisheries monitoring surveys, such as removing gear from the water if marine mammals are considered at-risk or are interacting with gear; and
• A requirement to submit frequently scheduled and situational reports including, but not limited to, information regarding activities occurring, marine mammal observations and acoustic detections, and sound field verification monitoring results.
NMFS must withdraw or suspend any LOA issued under these regulations, after notice and opportunity for public comment, if it finds the methods of taking or the mitigation, monitoring, or reporting measures are not being substantially complied with (16 U.S.C. 1371(a)(5)(B); 50 CFR 216.206(e)). Additionally, failure to comply with the requirements of the LOA may result in civil monetary penalties and knowing violations may result in criminal penalties (16 U.S.C. 1375; 50 CFR 216.206(g)).
This project is covered under Title 41 of the Fixing America's Surface Transportation Act or “FAST-41.” FAST-41 includes a suite of provisions designed to expedite the environmental review for covered infrastructure projects, including enhanced interagency coordination as well as milestone tracking on the public-facing Permitting Dashboard. FAST-41 also places a 2-year limitations period on any judicial claim that challenges the validity of a Federal agency decision to issue or deny an authorization for a FAST-41 covered project (42 U.S.C. 4370m-6(a)(1)(A)).
Dominion Energy's project is listed on the Permitting Dashboard, where milestones and schedules related to the environmental review and permitting for the Project can be found at
On February 16, 2022, Dominion Energy submitted a request for the promulgation of regulations and issuance of an associated LOA to take marine mammals incidental to construction activities associated with the Project. The request was for the incidental, but not intentional, taking of a small number of 21 marine mammal species (comprising 22 stocks) by Level B harassment (all 22 stocks) and by Level A harassment (7 species or stocks). Dominion Energy did not request, and NMFS neither expects nor authorizes, incidental take by serious injury or mortality.
In response to our questions and comments and following extensive information exchange between Dominion Energy and NMFS, Dominion Energy submitted a final revised application on August 5, 2022. NMFS deemed it adequate and complete on August 12, 2022. This final application is available on NMFS' website at
On September 15, 2022, NMFS published a notice of receipt (NOR) of Dominion Energy's adequate and complete application in the
In January 2023, BOEM informed NMFS that the proposed activity had changed from what is presented in the adequate and complete MMPA application. Specifically, the changed proposed activity involved the reduction of maximum wind turbine generators (WTGs) built (from 205 to 202 WTGs) as under the original Project Design Envelope (PDE) and the offshore substations (OSSs) would be located in the vessel transit routes. Under the 202
On May 4, 2023, NMFS published a proposed rule in the
NMFS has previously issued six Incidental Harassment Authorizations (IHAs) to Dominion Energy. Two of those IHAs, issued in 2018 (83 FR 39062, August 8, 2018) and 2020 (85 FR 30930, May 21, 2020) supported the development of the Coastal Virginia Offshore Wind project, known as the CVOW Pilot Project (wherein two turbines were constructed). The remaining four IHAs (two of which were modified IHAs) were high resolution site characterization surveys within and around the CVOW-C Lease Area (see 85 FR 55415, September 8, 2020; 85 FR 81879, December 17, 2020; 86 FR 21298, April 22, 2021; and 87 FR 33730, June 3, 2022). To date, Dominion Energy has complied with all the requirements (
On August 1, 2022, NMFS announced proposed changes to the existing North Atlantic right whale vessel speed regulations (87 FR 46921, August 1, 2022) to further reduce the likelihood of mortalities and serious injuries to endangered right whales from vessel collisions, which are a leading cause of the species' decline and a primary factor in an ongoing Unusual Mortality Event (UME). Should a final vessel speed rule be issued and become effective during the effective period of these regulations (or any other MMPA incidental take authorization), the authorization holder will be required to comply with any and all applicable requirements contained within the final vessel speed rule. Specifically, where measures in any final vessel speed rule are more protective or restrictive than those in this or any other MMPA authorization, authorization holders will be required to comply with the requirements of the vessel speed rule. Alternatively, where measures in this or any other MMPA authorization are more restrictive or protective than those in any final vessel speed rule, the measures in the MMPA authorization will remain in place. The responsibility to comply with the applicable requirements of any vessel speed rule will become effective immediately upon the effective date of any final vessel speed rule, and when notice is published on the effective date, NMFS will also notify Dominion Energy if the measures in the vessel speed rule were to supersede any of the measures in the MMPA authorization.
Dominion Energy plans to construct and operate the Project, a 2,500 to 3,000-megawatt (MW) offshore wind farm, in the Project Area. The Project will allow the Commonwealth of Virginia to meet its renewable energy goals under the Virginia Clean Economy Act (HB 1526/SB 851).
Dominion Energy's precursor pilot project (
The Project will consist of several different types of permanent offshore infrastructure, including 176 WTGs (
Marine mammals exposed to elevated noise levels during vibratory and impact pile driving and site characterization surveys may be taken by Level A harassment and/or Level B harassment, depending on the specified activity and species.
A detailed description of the specified activities is provided in the proposed rule as published in the
Dominion Energy anticipates its specified activities to occur throughout all 5 years of the effective period of the regulations, beginning on February 5, 2024 and continuing through February 4, 2029. Dominion Energy's anticipated construction schedule can be found in Table 1. Dominion Energy has noted that these are the best, and conservative, estimates for activity durations but that the schedule may shift due to weather, mechanical, or other related delays.
A detailed description of the Specified Geographic Region is provided in the proposed rule as published in the
A notice of proposed rulemaking was published in the
In total, NMFS received 169 comment submissions, comprising 161 individual comments from private citizens and 6 comment letters from organizations or public groups including, but not limited to: the Marine Mammal Commission (the Commission), Oceana, Inc. (Oceana), SELC, Responsible Offshore Development Alliance (RODA), West Coast Pelagic Conservation Group (WCPCG); and the Virginia Department of Wildlife Resources (VDWR). Some of the comments received are considered out-of-scope, including, but not limited to, comments related to the non-offshore wind farm development; concerns for other species outside of NMFS' jurisdiction (
The six letters (
While the Commission does indeed cite a relevant paper, Jones and Rees (2022), as the basis for their observation, NMFS does not believe this paper alone is enough justification for adjusting take. The study sites in Jones and Rees (2022) are not applicable to Dominion Energy's activities (
Specifically in addressing the Commission's concerns with the 50/50 allocation of take for pinnipeds between each species, NMFS disagrees that this method is incorrect and that this approach over- or under-estimates take. The Duke University density models (Roberts
Regarding the claim that there is no evidence proving the take estimates are accurate, the take numbers, as shown in the proposed and final rule, are based on the best available marine mammal density data, published and peer reviewed scientific literature, on-the-water reports from other nearby projects or past MMPA actions, and highly complex statistical models of which real-world assumptions and inputs have been incorporated to estimate on a project-by-project basis. In the Estimated Take section, NMFS has provided detailed rationale for why the number and manner of takes authorized in this final rule are reasonable and based on the best available science. The commenter did not provide any information to support their claim that take estimates are not representative of the take that may occur incidental to the project. NMFS disagrees with the commenter and expects that the take numbers authorized for this action are sufficient given the activity proposed and planned by Dominion Energy.
NMFS is required to authorize the requested incidental take if it finds such incidental take of small numbers of marine mammals by the requestor while engaging in the specified activities within the specified geographic region will have a negligible impact on such species or stock and, where relevant, will not have an unmitigable adverse impact on the availability of such species or stock for subsistence uses. As described in this notice of final rulemaking, NMFS finds that small numbers of marine mammals may be taken relative to the population size of the affected species or stocks and that the incidental take of marine mammal from all of Dominion Energy's specified activities combined will have a negligible impact on all affected marine mammal species or stocks. It is not within NMFS' authority to determine if the requestor's specified activities are truly necessary or critical; however, NMFS does identify and has required in this final rule mitigation measures the effect the least practicable adverse impact on marine mammals.
NMFS agrees that mitigation measures should be designed to avoid and minimize the potential for PTS and has included such measures in this rulemaking to effect the least practicable adverse impact on marine mammals. Specifically, in addition to requiring shutdown of pile driving if North Atlantic right whales are detected at any distance, NMFS has identified and required reasonable mitigation measures to avoid or minimize adverse impacts to marine mammals, such as setting this Project's impact pile driving clearance zones to be larger than the Level A harassment (PTS) zones for all other large whale species. NMFS believes that these measures are effective and would result in avoiding (North Atlantic right whale) or minimizing (other large whales) the takes by Level A harassment. We anticipate that where there is potential for Level A harassment, any auditory injury will be minimized through the implementation of noise abatement, soft starts, and clearance and shutdown zones. NMFS has made its required negligible impact finding based on the amount of take that may be authorized in the LOA.
NMFS agrees with the commenter that impacts should be minimized to the maximum extent practicable and we have done so with the required
Regarding the reporting requirement specified by the commenter, required weekly and monthly reports during foundation installation must contain information that would inform how long and when pile driving occurred, as Dominion Energy is required to document the daily start and stop times of all pile-driving activities. At minimum, a final annual report with this information will be made available to the public, as recommended by the commenter.
Regarding an “Adaptive Plan”, the proposed rule and this final rule contain adaptive management provisions that allows NMFS to modify mitigation, monitoring, or reporting measures if doing so creates a reasonable likelihood of more effectively accomplishing the goal(s) of the measure (
In response to the recommendation by the commenters for NMFS to confirm that a 10-dB reduction is achieved, NMFS clarifies that, because no unattenuated piles would be driven, there is no way to confirm a 10-dB reduction; rather,
In addition to the SFV requirements in the proposed rule, we added to this final rule the requirement that Dominion Energy must conduct abbreviated SFV monitoring (consisting of a single acoustic recorder placed at an appropriate distance from the pile) on all foundation installations for which the complete SFV monitoring, as required in the proposed rule, is not carried out consistent with the Biological Opinion. NMFS is requiring that these SFV results must be included in the weekly reports. Any indications that distances to the identified Level A harassment and Level B harassment thresholds for whales must be addressed by Dominion Energy, including an explanation of factors that contributed to the exceedance and corrective actions that were taken to avoid exceedance on subsequent piles.
One commenter who also supported PAM during HRG surveys, stated that the real-time PAM system should be capable of detecting protected species at least 10,000 m (6.2 mi) and would be undertaken by a vessel other than the pile driving vessel or from a stationary unit to avoid masking effects of the hydrophone. The commenter also suggested that PAM be used during all impact pile driving, during vibratory pile driving of the cofferdams, and during HRG surveys.
Second, for HRG surveys, the area expected to be ensonified above the Level B harassment threshold is relatively small (a maximum of 100 m via the GeoMarine Dual 400 Sparker at 800 joules); this reflects the fact that the source level is comparatively low and the intensity of any resulting impacts would be lower level. Further, the small harassment zone (and 500 m clearance and shutdown zones) are likely to be effectively monitored via visual means and PAM will only detect a portion of any animals exposed within these small zones. Together these factors support the limited value of PAM for use in reducing take with smaller zones.
NMFS also disagrees that the zones for North Atlantic right whales and other large whales should be expanded. As described in the proposed and final rules, the required 500-m clearance zone for North Atlantic right whales exceeds the modeled distance to the largest 160-dB Level B harassment isopleth (100 m (0.06 mi) during sparker use) by a large margin, minimizing the likelihood that they will be harassed in any manner by this activity. The 500-m distance is five times the estimated isopleth for the largest 160-dB Level B harassment threshold and we do not see a need to increase this further. Further, the commenters do not provide scientific information for NMFS to consider to support their recommendation to expand the clearance zone. As such, NMFS recognizes that requiring zones beyond those that meet the least practicable adverse impact standard could delay the project such that construction activities are extended to
Regarding the use of PAM during cable landfall construction, although distances above the Level B harassment threshold are larger than for HRG surveys (3,100 m for temporary cofferdams and 1,450 m for temporary goal posts), the effects are not expected to rise to the level that would constitute Level A harassment (injurious take). Noise generated during cable landfall construction is of relatively short duration, low level, and in nearshore waters (which tend to be calmer than offshore) where PSO monitoring will be sufficient for detecting marine mammals to implement mitigation that effects the least practicable adverse impact on marine mammals. Similar to HRG surveys, given that the effects to marine mammals from cable landfall construction are expected to be limited to low level behavioral harassment (Level B harassment) even in the absence of mitigation (
Regarding the use of passive acoustic monitoring to implement the clearance and shutdown zones during foundation installation, as described in the proposed rule, NMFS is requiring the use of PAM to monitor 10 km zones around the piles and that the systems be capable of detecting marine mammals during pile driving within this zone. In this final rule, Tables 25 and 26 clearly specify this 10-km PAM monitoring zone. Dominion Energy is required to submit a PAM Plan to NMFS for approval at least 180 days prior to the planned foundation pile driving start date. NMFS will not approve a Plan where hydrophones used for PAM would be deployed from the pile driving vessel as this would result in hydrophones inside the bubble curtains, which would clearly be ineffective for monitoring; therefore, there is no need to explicitly state in this rule that this would not be allowed.
As described in the Mitigation section, NMFS has determined that the prescribed mitigation requirements are sufficient to effect the least practicable adverse impact on all affected species or stocks.
For these reasons, NMFS does not believe it necessary to increase this zone size. Furthermore, even with the larger acoustic ranges produced from the conservative modeling, the minimum visibility zone does not differ greatly from those presented for other nearby projects which calculated distances to thresholds in consideration of animal movement (off of New Jersey, final Ocean Wind 1-1.65 km in the summer and 2.5 km in the winter; proposed Atlantic Shores South—1.9 km).
Regarding cumulative impacts, NMFS refers the commenter to the response found in Comment 28 as the same information applies here. Furthermore, while the commenter is correct that enhanced mitigation and monitoring measures are required for North Atlantic right whales specifically, given their unique and precarious position, and that some of these measures will have beneficial effects on other species as well. For example, while PAM detections of a North Atlantic right whale, at any distance, would necessitate a shutdown/delay to any specified activity, we expect that other low-frequency specialists will benefit from the use of PAM (
NMFS continually supports efforts to reduce ocean noise across various industries, including OSW. For example, NOAA's Ocean Noise Strategy (
It is important to note that the assumed 10-dB reduction is not a limit, it is a conservative estimate of the likely achievable noise reduction, which along with all other modeling assumptions, allows for estimation of marine mammal impacts and informs monitoring and mitigation. However, we have incorporated requirements to add or modify NAS in the event that noise levels exceed those modeled.
NMFS notes that Dominion Energy must conduct SFV on three monopiles and on all OSS foundations (n=12 pin piles total) and, at this time, NMFS does not support unmitigated field testing for pile installation. If SFV acoustic measurements indicate that ranges to isopleths corresponding to the Level A harassment and Level B harassment thresholds are less than the ranges predicted by modeling (assuming 10 dB attenuation), Dominion Energy may request a modification of the clearance and shutdown zones for foundation pile driving of monopiles. If requested and upon receipt of an interim SFV report, NMFS may adjust zones (
Lastly, NMFS agrees that SFV reports (sound source validation reports) to NMFS should be required and evaluated by the agencies prior to further work commencing. NMFS agrees that the final SFV reports that have undergone quality assurance/quality control (QA/QC) by the agencies and include all of the required information to support full understanding of the results will be made publicly available; however, interim results without full review and all of the other supporting information are not ripe or appropriate for public availability.
Lastly, NMFS agrees that a near real-time monitoring system and protocols for North Atlantic right whales and other large whale species is a prudent and practicable measure and, as such, included real-time PSO monitoring and near real-time PAM (where practicable and effective (
NMFS agrees with the commenter that North Atlantic right whale reporting should be done in a timely manner. The proposed and final rule each contain situational reporting requirements for every North Atlantic right whale sighting or acoustic detection immediately but also recognizes the potential for immediate communication to be challenging. In both of the proposed and final rules, NMFS has included a requirement that if a North Atlantic right whale is observed at any time by PSOs or project personnel, Dominion Energy must ensure the sighting is immediately (if not feasible, as soon as possible and no longer than 24 hours after the sighting) reported to NMFS, the U.S. Coast Guard, and the Right Whale Sightings Advisory System (RWSAS). This includes stranded animals. If the North Atlantic right whale is stranded, the report (via phone or email) must include contact (name, phone number,
PSOs and PAM operators are required to follow strict reporting requirements (
The commenter suggested that the use of a PAM system with localization capabilities, if available, should provide sufficient information regarding presence within the clearance/shutdown zone, but also recommended the use of other technologies (
NMFS disagrees that PAM alone should be used to monitor marine mammals and is requiring both visual and acoustic monitoring for specific specified activities. As described in the proposed rule, NMFS requires that Dominion Energy employ both visual and PAM methods as both approaches aid and complement each other (Van Parijs
Regarding the suggestion for
Lastly, regarding independent review, NMFS disagrees that such reviews should be incorporated into the adaptive management process. The MMPA and its implementing regulations require that incidental take
NMFS cannot require applicants to utilize specific models for the purposes of estimating take incidental to offshore wind construction activities, but we do require use of the Roberts
The proposed rule includes discussion of North Atlantic right whale habitat use in the Project Area, which is located off of Virginia (NMFS notes the comments provided incorrectly reference southern New England). The proposed rule also includes a discussion of the effects of stress on marine mammals from exposure to noise from the project; the discussion is informed by the best available science. NMFS has carefully reviewed the best available scientific information in assessing impacts to marine mammals and recognizes that Dominion Energy's activities have the potential to impact marine mammals through behavioral effects, stress responses, and temporary auditory masking. However, and specifically given the predicted exposures and number of authorized takes, NMFS does not expect that the generally short-term, intermittent, and transitory marine site characterization survey activities planned by Dominion Energy will create conditions of acute or chronic acoustic exposure leading to long-term physiological stress responses in marine mammals. For pile driving activities, and also specifically given the predicted exposures and amount of authorized take, we do not expect that the impacts from these activities would result in acute or chronic acoustic exposure that would lead to long-term physiological stress responses as these activities will all be localized and performed for limited durations. Additionally, for all activities, NMFS has prescribed a robust suite of mitigation and monitoring measures, including extended distance shutdowns for North Atlantic right whales, seasonal restrictions, dual-PSO and PAM usage, and NAS use that are expected to further reduce the duration and intensity of acoustic exposure, while limiting the potential severity of any possible behavioral disruption. The potential for chronic stress was evaluated in making the determinations presented in NMFS' negligible impact analyses. Furthermore, the area in which CVOW-C is located is not a known feeding habitat for North Atlantic right whales, although it is found within the migratory corridor BIA for North Atlantic right whales. NMFS does not anticipate that North Atlantic right whales would be displaced from the area where Dominion Energy's activities would occur, and the commenter does not provide evidence that this effect should be a reasonably anticipated outcome of the specified activity.
With respect to cumulative impacts, please see response to Comment 28.
Another member of the public expressed concerns over the number of North Atlantic right whales that have “already been killed” when combined with other offshore wind projects along the East Coast.
A member of the public has asked how NOAA is tracking the takes of several species, including marine mammals, and where this list can be found for the public. They have also asked how NOAA will determine an “acceptable” number of possible harassment/injuries/deaths for each species, annually, could occur.
The 1989 final rule for the MMPA implementing regulations also addressed public comments regarding cumulative effects from future, unrelated activities. There, NMFS stated that such effects are not considered in making findings under section 101(a)(5) concerning negligible impact. In this case, this ITR as well as other ITRs currently in effect or proposed within the specified geographic region, are appropriately considered an unrelated activity relative to the others. The ITRs are unrelated in the sense that they are discrete actions under section 101(a)(5)(A) issued to discrete applicants. Section 101(a)(5)(A) of the MMPA requires NMFS to make a determination that the take incidental to a “specified activity” will have a negligible impact on the affected species or stocks of marine mammals. NMFS' implementing regulations require applicants to include in their request a detailed description of the specified activity or class of activities that can be expected to result in incidental taking of marine mammals (
Through the response to public comments in the 1989 implementing regulations (54 FR 40338, September 29, 1989), NMFS also indicated (1) that we would consider cumulative effects that are reasonably foreseeable when preparing a National Environmental Policy Act (NEPA) analysis and (2) that reasonably foreseeable cumulative effects would also be considered under section 7 of the ESA for listed species, as appropriate. Accordingly, NMFS has adopted an Environmental Impact Statement (EIS) written by BOEM and reviewed by NMFS as part of its inter-agency coordination. This EIS addresses cumulative impacts related to Dominion Energy and substantially similar activities in similar locations. Cumulative impacts regarding the promulgation of the regulations and issuance of a LOA for construction activities, such as those planned by Dominion Energy, have been adequately addressed under NEPA in the adopted EIS that supports NMFS' determination that this action has been appropriately analyzed under NEPA. Separately, the cumulative effects of Dominion Energy on ESA-listed species, including North Atlantic right whales, was analyzed under section 7 of the ESA when NMFS engaged in formal inter-agency consultation with the ESA Interagency Cooperation Division within the Office of Protected Resources. The Biological Opinion for CVOW-C determined that NMFS' promulgation of the rulemaking and issuance of a LOA for construction activities associated with leasing, individually and cumulatively, are likely to adversely affect, but not jeopardize, listed marine mammals.
Given that each project is considered its own discrete action, for final marine mammal sightings recorded during each relevant project, NMFS directs the public to the relevant Project web page, where annual and final reports will be published describing the number of marine mammals detected within specific harassment zones to date and across the entire effective period of the Project.
Regarding the number of North Atlantic right whales for which take has been authorized—NMFS reiterates that only Level B harassment (behavioral) is anticipated and has been authorized for this species. In looking at the maximum annual authorized number, Dominion Energy is authorized to harass no more than 7 North Atlantic right whales (assuming each instance of harassment occurs to a different individual), representing 2.04 percent of the total population. Over the course of 5 years, Dominion Energy would be authorized to harass up to 17 individual North Atlantic right whales. We expect that any instance of harassment would result in short-term impacts such as avoidance of the project area but not abandonment of their migratory habitat. Further, as described in the Negligible Impact Analysis and Determination Section, the location of the least area (44 km offshore) and seasonal restriction on foundation installation pile driving (the most impactful activity) provides high conservation benefit and greatly minimizes impacts on North Atlantic right whales (as evidenced by the very small amount of take authorized despite the size of the project). We reiterate that we do not anticipate, nor have we proposed or authorized, mortality or serious injury for any marine mammal species for the CVOW-C Project. This includes for North Atlantic right whales, where no Level A harassment is anticipated or authorized due to the mitigation measures required to be implemented by Dominion Energy.
Another commenter has stated that NMFS cannot determine the cause of the recent whale deaths accurately without doing necropsies. Because of this, the commenter states that NMFS cannot determine that recent whale mortalities were not related to “the whales' diminished ability to determine its location due to acoustic damage to its echolocation systems” from offshore wind-related surveys (
Lastly, another commenter stated that funding should be made available to: (1) train PSOs; (2) stranding network organizations to carry out necessary carcass recovery, examination, and diagnostic tests to exclude acoustic injuries as reasons for strandings associated with HRG surveys and/or construction activities; and (3) understand how strandings of protected species in unusual patterns during or around times where HRG surveys/construction activities occur so that costs can be calculated for the relevant response (
The Marine Mammal Commission's recent statement supports NMFS' analysis: “There continues to be no evidence to link these large whale strandings to offshore wind energy development, including no evidence to link them to sound emitted during wind development-related site characterization surveys, known as HRG surveys. Although HRG surveys have been occurring off New England and the mid-Atlantic coast, HRG devices have never been implicated or causatively associated with baleen whale strandings.” (Marine Mammal Commission Newsletter, Spring 2023). There is an ongoing Unusual Mortality Event (UME) for humpback whales along the Atlantic coast from Maine to Florida, which includes animals stranded since 2016. Partial or full necropsy examinations were conducted on approximately half of the whales. Necropsies were not conducted on other carcasses because they were too decomposed, not brought to land, or stranded on protected lands (
Additionally, NMFS has not authorized mortality or serious injury in this final rule, and such taking is prohibited under § 217.292(c) of the regulations and may result in modification, suspension, or revocation of an LOA issued under these regulations. NMFS notes there has never been a report of any serious injuries or mortalities of a marine mammal associated with site characterization surveys.
Furthermore, while NMFS agrees in the value of necropsies in determining the cause of death of a stranded marine mammal, NMFS stranding partners cannot perform necropsies on every dead animal as some of the carcasses were either too decomposed, not brought to land, or stranded on protected lands (
Additionally, a commenter raised a concern regarding potential injury to “echolocation systems”. All large whales that have stranded since December 2011, with the exception of three sperm whales, have been mysticete (baleen) whales (
Regarding available funding, as suggested by another commenter, Dominion Energy is responsible for acquiring NMFS-approved PSOs to conduct marine mammal monitoring as prescribed in its rule. PSOs working on the CVOW-C Project would not be involved in stranding response beyond the required reporting measures (
Regarding the comment on the photographs in the event of a stranding or dead animal, NMFS does not see a reason to require very specific parameters for these photographs, as all observations would be taken in the offshore environment where conditions are typically difficult. Additionally, we expect that few, if any, of the crew would be trained in proper necropsy technique to know which photographs to take or what to look for; instead, we ask the developer and their crew (alongside the NMFS-approved PSOs and PAM operators) to collect any evidence, information, and photographs they are capable of and have access to, instead of providing additional restrictions that may complicate the acquisition of important data. If a decision is made to retrieve or tow a carcass to shore, we expect that trained stranding specialists would be on hand to handle the specifics the commenter is referring to. Because of this, we do not see the need to require the suggestion by the commenter.
The MMPA requires NMFS to evaluate the effects of the specified activities based on the best scientific evidence available and to issue the requested incidental take authorization if it makes the necessary findings. The MMPA does not allow NMFS to delay issuance of the requested authorization on the presumption that new information will become available in the future. If new information becomes available in the future, NMFS may modify the mitigation and monitoring measures in an LOA issued under these regulations through the adaptive management provisions. Furthermore, NMFS is required to withdraw or suspend an LOA if it determines that the authorized incidental take may be having more than a negligible impact on a species or stock. This determination is made following notice and opportunity for public comment, unless and emergency exists that poses a significant risk to the well-being of the marine mammal species or stock.
NMFS has duly considered the best scientific evidence available in its effects analysis. The
NMFS emphasizes that an IHA or rulemaking/LOA does not authorize the activity itself but authorizes the take of marine mammals incidental to the “specified activity” for which incidental take coverage is being sought. In this case, NMFS is responding to Dominion Energy's request to incidentally take marine mammals in the course of constructing the CVOW-C Project. The authorization of the specified activities is not within NMFS' jurisdiction; instead, this falls under BOEM's
Lastly, regarding the commenter's concern about assessing all offshore wind projects cumulatively, NMFS will not repeat the response but instead refers the commenter to Comment 28, where we explain why each project is considered discrete and as its own separate action.
Another member of the public recommended that if a marine mammal is killed during the specified construction activities for CVOW-C, then Dominion Energy should “be fined a considerable sum.”
In the unexpected event that Dominion Energy exceeds the number of takes authorized for a given species, the MMPA and its implementing regulations state that NMFS shall withdraw or suspend the LOA issued under these regulations, after notice and opportunity for public comment, if it finds the methods of taking or the mitigation, monitoring, or reporting measures are not being substantially complied with, or the taking allowed is having, or may have, more than a negligible impact on the species or stock concerned (16 U.S.C. 1371(a)(5)(B); 50 CFR 216.206(e)). Additionally, failure to comply with the requirements of the LOA may result in civil monetary penalties and knowing violations may result in criminal penalties (16 U.S.C. 1375; 50 CFR 216.206(g)).
Moreover, as noted previously, fishing impacts (and NMFS' assessment of them) generally center on entanglement in fishing gear, which is a very acute, visible, and severe impact (mortality or serious injury). In contrast, the impacts incidental to the specified activities are primarily acoustic in nature and limited to Level A harassment and Level B harassment, there is no anticipated or authorized serious injury or mortality that the fishing industry could theoretically be held accountable for. Any take resulting from the specified activities would not be associated with take authorizations related to commercial fish stocks. The impacts of commercial fisheries on marine mammals and incidental take for said fishing activities are managed separately from those of non-commercial fishing activities such as offshore wind site characterization surveys, under MMPA section 118.
NMFS disagrees with the commenter that the risk of vessel strike was not considered in the analysis. NMFS takes the risk of vessel strike seriously and while we acknowledge that vessel strikes can result in injury or mortality, we have analyzed and determined that the potential for vessel strike is so low as to be discountable. Dominion Energy must abide by a suite of vessel strike avoidance measures that include, for
Furthermore, NMFS disagrees that the CVOW-C Project would “completely disrupt and destroy the North Atlantic Right Whale population and migration path,” as suggested by the commenters. NMFS is aware of no evidence to support this claim, nor did the commenters provide any. In total, the CVOW-C Project Area consists of approximately 456.5 km
Since the publication of the proposed rule in the
The information found in the preamble of the proposed rule was based on the best available information at the time of publication. Since publication of the proposed rule, new information has become available and has been incorporated into this final rule, as discussed below.
The following changes are reflected in the
Given the release of NMFS' final 2022 SARs (Hayes
Given the availability of new information, we have made updates to the UME summaries for multiple species (
The following changes are reflected in the Mitigation section of the preamble to this final rule:
We have added a general requirement that noise levels must not exceed those modeled, assuming 10 dB attenuation.
Because Dominion Energy has informed NMFS that the soft-start procedure in the proposed rule raises engineering feasibility and practicability concerns, we have removed the specific soft-start procedure identified in the proposed rule (
In Tables 25 and 26, we have added the requirement for clearance and shutdown of pile driving based on PAM detections at 10 km (6.2 mi) that applies to all species except North Atlantic right whales, which would still require shutdown at any distance upon a detection.
We have added a requirement in the
We have made the following changes to the regulatory text, which are reflected, as appropriate, throughout this final rule and described, as appropriate, in the preamble.
For clarity and consistency, we revised two paragraphs in § 217.290 Specified activity and specified geographical region of the regulatory text to fully describe the specified activity and specified geographical region.
The following changes are reflected in § 217.294 Mitigation Requirements and the associated Mitigation section of the preamble to this final rule:
For clarity and consistency, we have reorganized and revised, as applicable,
We have clarified the requirement that Dominion Energy deploy at least two functional noise abatement systems requires at least a double bubble curtain.
As described above, we updated the WTG and OSS impact pile driving soft-start procedural requirements.
The following changes are reflected in § 217.295 Monitoring and Reporting Requirements and the associated Monitoring and Reporting section of the preamble of this final rule:
For clarity and consistency, we have reorganized and revised, as applicable, the paragraphs in § 217.295 Monitoring and reporting requirements.
We have updated the process for obtaining NMFS approval for PSO and PAM operators to be similar to requirements typically included for seismic (
We have added a requirement that the Lead PSO must have a minimum of 90 days of at-sea experience and must have obtained this experience within the last 18 months.
We have added a requirement to have at least three PSOs on pile driving vessels rather than two PSOs, as was originally described in the proposed rule.
We have added requirements that SFV must be conducted on every pile until measured noise levels are at or below the modeled noise levels, assuming 10 dB, for at least three consecutive monopiles.
We have removed the requirement to include HRG survey activities in the weekly report. This requirement is inconsistent with previously promulgated and issued incidental take authorizations for HRG survey activities and a rationale was not included in the preamble of proposed rule to support this change. Consistent with previous authorizations, HRG survey activities are to be included in the annual report (see § 217.295(g)(7)).
We have removed the requirements for reviewing data on an annual and biennial basis for adaptive management and instead will make adaptive management decisions as new information warrants it.
As noted in the Changes From the Proposed to Final Rule section, updates have been made to the UME summaries of multiple species. These changes are described in detail in the sections below. We have also included new data on North Atlantic right whale abundance information (Linden, 2023) and updated the annual M/SI value presented in Table 2, based upon updates found in the final SARs (see Hayes
Several marine mammal species occur within the specified geographic region. Sections 3 and 4 of Dominion Energy's ITA application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history of the potentially affected species (Dominion Energy, 2023). NMFS fully considered all of this information, and we refer the reader to these descriptions in the application, adopted here by reference, instead of reprinting the information. Additional information regarding population trends and threats may be found in NMFS' SARs (
Table 2 lists all species or stocks for which take is authorized under this final rule and summarizes information related to the species or stock, including regulatory status under the MMPA, ESA, and PBR, where known. PBR is defined as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS' SARs; (16 U.S.C. 1362(20))). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock, or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS' U.S. Atlantic and Gulf of Mexico SARs. Values presented in Table 2 are the most recent available data at the time of publication which can be found in NMFS' 2022 final SARs (Hayes
A detailed description of the species likely to be affected by the Project, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the
In June 2023, NMFS released its final 2022 SARs, which updated the annual M/SI value from 8.1 to 31.2 due to the addition of estimated undetected mortality and serious injury, as described above, which had not been previously included in the SAR. The
Since January 2016, elevated humpback whale mortalities have occurred along the Atlantic coast from Maine to Florida. This event was declared a UME in April 2017. Partial or full necropsy examinations have been conducted on approximately half of the 212 known cases (as of December 19, 2023). Of the whales examined (approximately 90), about 40 percent had evidence of human interaction, either vessel strike or entanglement (refer to
Since December 1, 2022, the number of humpback strandings along the mid-Atlantic coast, including Virginia, has been elevated. In some cases, the cause of death is not yet known. In others, vessel strike has been deemed the cause of death. As the humpback whale population has grown, they are seen more often in the Mid-Atlantic. These whales may be following their prey (small fish) which are reportedly close to shore in the winter. These prey also attract fish that are of interest to recreational and commercial fishermen. This increases the number of boats and fishing gear in these areas. More whales in the vicinity of areas traveled by boats of all sizes increases the risk of vessel strikes. Vessel strikes and entanglement in fishing gear are the greatest human threats to large whales.
Since January 2017, a UME has been declared based on elevated minke whale mortalities detected along the Atlantic coast from Maine through South Carolina. As of December 19, 2023, a total of 160 minke whales have stranded during this UME. Full or partial necropsy examinations were conducted on more than 60 percent of the whales. Preliminary findings have shown evidence of human interactions or infectious disease in several of the whales, but these findings are not consistent across all of the whales examined, so more research is needed. This UME has been declared non-active and is pending closure. More information is available at:
Since June 2022, elevated numbers of harbor seal and gray seal mortalities have occurred across the southern and central coast of Maine. This event was declared a UME in July 2022. Preliminary testing of samples has found some harbor and gray seals are positive for highly pathogenic avian influenza. While the UME is not occurring in the Project Area, the populations affected by the UME are the same as those potentially affected by the Project. However, due to the two states being approximately 677.6 km (421 mi) apart, by water (from the most northern point of Virginia to the most southern point of Maine), NMFS does not expect that this UME would be further conflated by the activities related to the Project. Information on this UME is available online at:
The above event was preceded by a different UME, occurring from 2018-2020 (closure of the 2018-2020 UME is pending). Beginning in July 2018, elevated numbers of harbor seal and gray seal mortalities occurred across Maine, New Hampshire, and Massachusetts. Additionally, stranded seals have shown clinical signs as far south as Virginia, although not in elevated numbers, therefore the UME investigation encompassed all seal strandings from Maine to Virginia. A total of 3,152 reported strandings (of all species) occurred from July 1, 2018, through March 13, 2020. Full or partial necropsy examinations have been conducted on some of the seals and samples have been collected for testing. Based on tests conducted thus far, the main pathogen found in the seals is phocine distemper virus. NMFS is performing additional testing to identify any other factors that may be involved in this UME. Information on this UME is available online at:
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
The pinniped functional hearing group was modified from Southall
NMFS notes that in 2019a, Southall
The effects of underwater noise from the Project's specified activities have the potential to result in the harassment of marine mammals in the specified geographic region. The proposed rule (88 FR 28656, May 4, 2023) included a discussion of the effects of anthropogenic noise on marine mammals and the potential effects of underwater noise from Dominion Energy's project activities on marine mammals and their habitat. That information and analysis is adopted by reference into this final rule and is not repeated here; please refer to the notice of the proposed rule (88 FR 28656, May 4, 2023).
Since publication of the proposed rule, new scientific information has become available that provides additional insight into the sound fields produced by turbine operation. Recently, Holme
This section provides an estimate of the number of incidental takes authorized through this rulemaking, which will inform both NMFS' consideration of “small numbers” and the negligible impact determination.
Authorized takes would be primarily by Level B harassment, as use of the acoustic sources (
Generally speaking, we estimate take by considering: (1) acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and (4) and the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (
NMFS recommends the use of acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source or exposure context (
Dominion Energy's construction activities include the use of continuous (
NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). As dual metrics, NMFS considers onset of PTS (Level A harassment) to have occurred when either one of the two metrics is exceeded (
These thresholds are provided in Table 4 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS' 2018 Technical Guidance, which may be accessed at:
Dominion Energy would not conduct high-order detonation of unexploded ordnances or munitions and explosives of concern (UXOs/MECs) as part of the Project. As Dominion Energy has not requested, and NMFS has not authorized, any take related to the detonation of UXOs/MECs, the acoustic (
As described above, underwater noise associated with the construction of offshore components of CVOW-C would predominantly result from installation of the WTG monopile and the OSS jacket foundations using a dual-vibratory and impact pile driving approach while noise from cable landfall construction activities (
Animat exposure modeling was only performed for foundation installation. For other activities planned by Dominion Energy (
Dominion Energy employed Tetra Tech, Inc. (Tetra Tech) to conduct the acoustic modeling and Marine Acoustics, Inc. (MAI) for the animal movement modeling to better understand both the sound fields produced during foundation and cofferdam installation and to estimate any potential exposures (see the Acoustic Modeling report in Appendix A of Dominion Energy's ITA application). Dominion Energy also collaborated with the Institute for Technical and Applied Physics (iTAP) for information related to vibratory pile driving of foundation piles. Tetra Tech also performed the acoustic analysis related to temporary cofferdam installation and removal via vibratory pile driving. Acoustic source modeling of vibratory pile driving related to cofferdam installation and removal was incorporated into the static method to yield estimated and requested take values. Tetra Tech applied the source modeling methods from the CVOW Pilot Project with modifications based on newly available data and the additional availability of research studies. The approach is summarized here; more detail can be found in the Acoustic Modeling report in Appendix A of Dominion Energy's ITA application.
Based on a literature review of pile driving measurement reports, theoretical modeling reports, and peer-reviewed research papers (see the references in Attachment Z-2 in Appendix A of Dominion Energy's COP (2023)), Tetra Tech developed an empirical modeling approach for calculating the acoustic source of impact pile driving foundation installation activities for the CVOW-C Project. A collaboration between Dominion Energy and iTAP assessed the estimated acoustic source levels produced from vibratory pile driving of foundation piles based on empirical data collected and assessed from the CVOW Pilot Project and other European offshore wind farms. These two modeling approaches are discussed separately here.
An empirical model developed by Tetra Tech was used to determine the peak sound level (L
1. Normalizing the received sound pressure levels to a common received range, assuming a transmission loss of 15LogR (
2. Scaling the source levels to an energy of 4,000 kJ, assuming a relationship between the hammer energy and radiated sound as 10 times the base 10 logarithm of the ratio of hammer energy to the referenced hammer energy (as in the scaling laws outlined in von Pein
3. Calculating a linear regression of the adjusted source levels (which has been normalized for range and hammer energy) as a function of the base 10 logarithm of the pile diameters, which is then used to predict the broadband SEL and peak sound levels for the planned energy and diameter.
The above empirical model was used in determining L
Information on the impact pile driving scenarios and source levels for WTGs, OSSs, and goal posts can be found in Table Z-7 of Appendix A of Dominion Energy's ITA application. These impact modeling scenarios assumed no sound attenuation. For all WTG monopile modeling (
Limited empirical data exists for the installation of large foundation piles by vibratory driving, with most being measured by iTAP (see Remmers and Bellmann (2021) in Appendix A of the application (Attachment Z-3)). Current datasets contain a variety of different information, including ranges of water depths from several meters to depths of 40 m, different sediment types, and measured receiver distances from several meters away from the source up to 750 m away.
To predict the expected underwater noise levels during vibratory pile driving of 2.4 m pin piles for the OSS and 9.5 m monopiles, iTAP used the limited empirical data from several existing offshore wind farms from different pile diameters. All data were normalized to a distance from the source of 750 m assuming a propagation loss of 15LogR. Given this normalization, uncertainties of <3 dB were expected. The data were plotted as a function of the pile diameter and then fit with a statistical regression curve (see the figure in Remmers and Bellmann (2021) Attachment Z-3 in Appendix A of Dominion Energy's application). Using the resulting regression, iTAP predicted noise levels of 151 dB SPL for 2.4 m pin piles and 159 dB SPL for 9.5 m monopiles (the maximum size piles Dominion Energy plans to install), at a range of 750 m from the driven piles (Remmers and Bellmann (2021)). Based on possible influences of friction between the head of the vibratory hammer and the top of the piles, iTAP states that these results at 750 m from the piles may be overestimating the source level for vibratory pile driving.
For vibratory installation of cofferdams, adjusted one-third-octave band source levels (with a broadband source level of 195 dB SEL) were obtained from similar offshore construction projects and then adjusted to account for the estimated force needed to drive cofferdam sheet piles (see Schultz-von Glahn
To predict acoustic levels at range during foundation installation (impact and vibratory pile driving) and temporary cofferdam installation and removal (vibratory pile driving), Tetra Tech used sound propagation models, discussed below. For the installation and removal of goal posts and HRG surveys, Dominion Energy assumed a practical spreading loss rate (15logR). Below we describe the more sophisticated sound propagation modeling methodology.
Tetra Tech utilized a software called dBSea, which was developed by Marshall Day Acoustics (
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Each model utilizes imported environmental data and manually placed noise sources in the aquatic environment, which could consist of either equipment in the standard dBSea database or a user-specific database (
For the CVOW-C Project's modeled environment using dBSea, bathymetry data were obtained by Tetra Tech from the National Geophysical Data Center and U.S Coastal Relief Model (NOAA Satellite and Information Service, 2020) and consisted of a horizontal resolution of 3 arc seconds (defined as 90 m (295.28 ft)). The data covered an area consisting of 138 km x 144 km (452,755.91 ft x 472,440.94 ft) with a maximum depth of 459 m (1,505.91 ft). Sound sources were placed near the middle of the bathymetry area. The bathymetry data were imported into the dBSea model and extents were set for displaying the received sound levels. Relatedly, sediment data were also included into the model as bottom sedimentation has the potential to directly impact the sound propagation. Dominion Energy's site assessment surveys revealed the Project Area primarily consists of a predominantly sandy seabed. While not reiterated here, Appendix A of Dominion Energy's application contains the tables that include the geoacoustic properties of the sub-bottom sediments for modeling scenarios involving the more offshore WTG and OSS foundations (see Table Z-5) and for the nearshore temporary cofferdams (see Table Z-6).
Given that the sound speed profile in an aquatic environment varies throughout the year, Tetra Tech calculated seasonal sound speed profiles based on the planned installation schedule presented for the CVOW-C Project. Dominion Energy would only install WTG and OSS foundations between May 1st and October 31st, annually, hence an average sound speed profile was calculated for this time period. Sound speed profile data were obtained from the NOAA Sound Speed Manager software incorporating World Ocean Atlantic 2009 extension algorithms. A sensitivity analysis was performed on the monthly sound speed information to determine the most conservative sound modeling results. The average sound speed profile obtained from this dataset was directly included into the dBSea model (see Figure 3 in Attachment Z-1 in Dominion Energy's application (Appendix A)). This same approach was undertaken for temporary cofferdam installation.
The scenarios for WTG monopile and OSS jacket pin pile installation were modeled using a vertical array (based on third-octave band sound characteristics that was adjusted for site-specific parameters, including expected hammer energy and the number of hammers strikes needed per each scenario) of point sources spaced at 1-m intervals. Each of the third octave band center frequencies from 12.5 Hz up to 20 kHz of the source spectra was modeled. In order to conservatively account for the presence of pile driving sound at high-frequencies, a constant 15 dB/decade roll-off is applied to the modeled spectra after the second spectral peak. The spectra source levels for impact driving of monopile and pin piles can be found in Figure 10 of the CVOW-C ITA application. The vibratory pile driving spectra, which is available in Figure 11 of the ITA application, used reference information from iTAP (Gerke and Bellmann, 2012), the California Department of Transportation (CALTRANS, 2015), and from measurements of vibratory driving collected by Tetra Tech. Based on the description above, Tetra Tech determined an appropriate sound speed profile to input into dBSea by pulling the average sound speed profile for the construction period (May 1st to October 31st), following the schedule provided by Dominion Energy. No information was pulled for November 1st through April 30th, as no pile driving is planned due to seasonal restrictions regarding the North Atlantic right whale. The monthly sound speed profile for the planned WTG and OSS foundation construction period is found in Figure 12 in the CVOW-C ITA application.
The sound level estimates are calculated from the generated three-dimensional sound fields and then, at each sampling range, the maximum received level that occurs within the water column is used as the received level at that range. The dBSea model allows for a maximum received level-over-depth approach (
Here we note that Tetra Tech and MAI did not calculate or provide exposure ranges to the Level A harassment SEL
Temporary cofferdams followed a similarly described approach. To estimate the distances to the harassment isopleths from the vibratory installation of sheet piles, it was assumed that the vibratory pile driver would use approximately 1,800 kilonewtons of vibratory force over 60 minutes. Given the close proximity of all temporary cofferdams in the nearshore environment and the relatively same installation depth (3.3. m), a single representative location (
To estimate the probability of exposure of animals to sound above NMFS' harassment thresholds during foundation installation, MAI integrated the sound fields generated from the source and propagation models described above with marine mammal species-typical behavioral parameters (
MAI's animat modeling was conducted using the Acoustic Integration Model (AIM; Frankel
Animats that exceed NMFS' acoustic thresholds were identified and the range for the exceedances determined. The output of the simulation is the exposure history for each animat within the simulation, and the combined history of all animats gives a probability density function of exposure during the project. The number of animals expected to exceed the regulatory thresholds is determined by scaling the probability of exposure by the species-specific density of animals in the area. By programming animats to behave like marine species that may be exposed to foundation installation noise during pile driving, the animats are exposed to the sound fields in a manner similar to that expected for real animals.
Take estimates from cable landfall construction activities (cofferdam and goal post installation and removal) and HRG surveys were calculated based on a static method (
This methodology was utilized for impact pile driving associated with goal posts, vibratory pile driving associated with temporary cofferdams, and active acoustic source use from HRG surveys as no exposure modeling was conducted.
In this section, we provide information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. As noted above, depending on the species and activity type, and as described in the Estimated Take section for each activity type, the calculated number of takes and the number of takes that NMFS authorizes is based on the highest estimate of take resulting from
Dominion Energy applied the Duke University Marine Geospatial Ecology Laboratory marine mammal habitat-based density models (
The Duke habitat-based density models delineate species' density into 5 x 5 km (3.1 x 3.1 mi) grid cells (as opposed to the 10 x 10 km (6.2 x 6.2 mi) grid cells previously used in past Roberts
For foundation installation, densities were extracted from grid cells within the Lease Area and those extending 8.9 km (5.53 mi) beyond the Lease Area boundaries. The grid cells within the 8.9 km perimeter area were incorporated to account for the largest ensonified area to the Level B harassment threshold; thereby representing the furthest extent where potential impacts to marine mammals could be expected. The density in the grid cells selected were averaged for each month to provide a mean monthly density for each marine mammal species and/or stock. In some cases, the density models combine multiple species (
The exposure estimates from the animal movement modeling or static methods described above directly informed the take estimates. In some cases, adjustments to the density-based exposure estimates may be necessary to fully account for all animals that could be taken during the specified activities. This could consist of an adjustment based on species group size or observations or acoustic detections provided in monitoring reports.
For some species, observational data from PSOs aboard HRG survey vessels indicate that the density-based exposure estimates may be insufficient to account for the number of individuals or type of species that may be encountered during the planned activities. As an example, pantropical spotted dolphins have been included in the requested take request based on prior PSO observation data, obtained via the 2020-2021 monitoring report from under previously issued (and subsequently modified) HRG IHAs to Dominion Energy occurring in and around the Lease Area (see RPS (2018), AIS, Inc. (2020), and RPS (2021)). For other less-common species, the predicted densities from Roberts
Regardless of methodology used (
Here, we present the construction scenarios Dominion Energy applied to its analysis, which NMFS is carrying forward in this rule, and the resulting acoustic ranges to Level A harassment and Level B harassment thresholds, exposure estimates, and take estimates from WTG and OSS foundation installation following the aforementioned modeling methodologies.
To complete the project, Dominion Energy has prepared four foundation installation construction schedules (three for WTG installation and one for OSS installation), as construction schedules cannot be fully predicted due to uncontrollable environmental factors (
For the monopile scenarios, two types of pile driving conditions are expected for each monopile installed: a standard pile driving situation (Scenario 1) and a hard-to-drive (Scenario 2) situation. During the installation of one monopile for WTG foundations per day, either a standard or hard-to-drive scenario may be necessary, which would determine the duration of vibratory driving and the number of impact hammer strikes needed. In situations where two monopile WTGs would be installed per day (
Dominion Energy has assumed that a maximum of two monopiles may be installed per day or that a maximum of two pin piles would be installed per day. No concurrent pile driving would occur. Due to the risk of pile run, Dominion Energy expects to utilize a joint vibratory-impact pile driving installation approach on all WTG and OSS foundation piles. All scenarios, including associated pile driving details, expected to occur can be found in Table 5 below.
As described above, underwater noise associated with the construction of offshore components of CVOW-C would predominantly result from vibratory and impact pile driving monopile and jacket foundations. As previously described, Dominion Energy employed Tetra Tech to conduct acoustic modeling and MAI to conduct animal movement exposure modeling to better understand sound fields produced during these activities and to estimate exposures. For installation of foundation piles, animal movement modeling was used to estimate exposures.
Presented below are the acoustic ranges to the Level A harassment and Level B harassment thresholds for WTG installation in the deeper environment (Table 6), WTG installation in the shallower water (Table 7), and OSS installation in the single representative location (Table 8). All ranges shown are assuming 10 dB of sound attenuation as Dominion Energy would employ a noise attenuation system (NAS; consisting of at least a double bubble curtain) during all vibratory and impact pile driving of monopile and jacket foundations. Although three attenuation levels were evaluated, and Dominion Energy has not yet finalized its mitigation strategy, Dominion Energy and NMFS both anticipate that the noise attenuation system ultimately chosen will be capable of reliably reducing source levels by 10 dB. Therefore, modeling results assuming 10-dB attenuation are carried forward in this analysis for WTG and OSS foundation installation. See the Mitigation section for more information regarding the justification for the 10 dB assumption.
Dominion Energy provided seasonal density estimates during the time of year when WTG and OSS foundations would be installed following the methodology provided in the
MAI set the modeled marine mammal animats to populate each of the model areas with the representative nominal densities provided. During the modeling, some of the obtained densities were higher than the real-world density, as to ensure that the results of the animat model simulations were not unduly influenced by the spontaneous placement of some of the simulated marine mammals and to provide additional statistical robustness within the modeling exercise. To obtain the final exposure estimates, the modeled results were normalized by the ratio of the modeled animat density to the real-world seasonal densities. The exposure estimates were derived based on the history of exposure within the modeling exercise for each marine mammal species or species group. The modeled SEL received by each animat over the duration of the construction activity period (
For the monopile WTG installation, the exposure calculations assumed 176 WTG monopiles would be installed over 2 years, but also took into account the need for Dominion Energy to possibly re-pile for up to 7 WTG foundations (equating to a total of 183 modeled piling events for WTGs). For the jacket foundations using pin piles for the OSSs, the modeling assumed that up to 12 pin piles (4 per OSS for up to 3 total OSSs) would be installed over 2 years. Both of these were modeled in accordance with the schedule provided by Dominion Energy.
Overall, for Year 1 (2024), it was assumed that up to a maximum of 95 monopiles and all 12 pin piles would be installed. For Year 2, it was assumed that a maximum of 88 monopiles (which does account for the 7 possible re-piling events that may be necessary) would be installed. As construction of the WTGs and OSSs are only anticipated to occur in the first 2 years of the project (2024 and 2025), animats were only calculated for these. Although schedule delays due to weather or other unforeseen activities may require Dominion Energy to not complete all piling in Year 2, but instead push a limited number of piles to Year 3 (2026) and/or Year 4 (2027), no modeling was completed for 2026 or 2027. This is because any piles not completed in 2025 (Year 2) would be pushed to 2026 (Year 3) and/or 2027 (Year 4), which means that the current analysis has accounted for the total scenario for foundation installation activities in Year 2 would be less than estimated here and instead would shift some to Years 3 or 4. Please see Table 10 for the derived exposure estimates during WTG and OSS foundation installation over 2 years (2024 and 2025).
The exposure estimates for both the installation of WTGs and OSSs over 2
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In Table 10, we present the calculated exposure estimates and the maximum amount of take authorized during foundation installation of WTGs and OSSs during the 5-year effective period for the CVOW-C Project. As demonstrated by the exposure modeling results, which do not consider mitigation other than the use of a sound attenuation device(s), the potential for Level A harassment is very low. However, there may be some situations where pile driving cannot be stopped due to safety concerns related to pile instability.
As previously discussed, only 176 WTG and 3 OSS (using a maximum of 12 pin piles) foundations would be permanently installed for the CVOW-C Project; however, Dominion Energy has considered the possibility that some piles may be started but not fully installed at some locations due to installation feasibility issues. Conservatively, Dominion Energy has estimated up to seven additional pile driving events may be needed in the event this occurs. Per Dominion Energy's estimated construction schedule, it is anticipated that all of these foundation installation activities would occur in Year 1 (2024) and Year 2 (2025); therefore, the take estimates below reflect the foundation pile driving activities associated with 183 WTG foundations and 3 OSSs, to account for the 7 additional re-piling events that may occur if monopiles were started in one location but then needed to be re-driven at another WTG position.
Additionally, as previously discussed above in the Description of the Specified Activities section, Dominion Energy's construction schedule may shift during the project due to bad weather or other uncontrollable and unforeseen events, which may require foundation installation to shift and occur in 2026 and/or 2027 instead. However, in this situation, the maximum amount of take authorized would not change; instead, some of the take that would have occurred in 2025 would instead occur in 2026 and/or 2027, which means that the take of marine mammals during 2025 would be less than predicted here, as those takes would be shifted into 2026 and/or 2027.
Dominion Energy plans to install and remove both temporary goal posts comprised of steel pipe piles (to guide the placement of casing pipes installed using a trenchless installation method that does not produce noise levels with the potential to result in marine mammal harassment) and temporary cofferdams comprised of steel sheet piles at cable landfall locations.
Dominion Energy would install and remove up to nine temporary cofferdams adjacent to the firing range at the State Military Reservation in Virginia Beach using a vibratory hammer. Dominion Energy assumed that a maximum of 6 days would be needed to install and remove a single cofferdam (3 days to install and 3 days to remove). Vibratory pile driving would occur for up to 60 minutes per day (1 hour) and up to 20 sheet piles could be installed per day (each cofferdam would necessitate 30 to 40 sheet piles, depending on the final chosen configuration). Table 11 includes details for the cofferdam scenario.
Underwater noise associated with the construction of temporary cofferdams would only result from vibratory pile driving of steel sheet piles. As already described previously, Dominion Energy employed Tetra Tech to conduct the acoustic modeling to better understand the sound fields produced during these activities. These results also utilized information provided by iTAP (see Remmers and Bellmann (2021) Attachment Z-3 in Appendix A of Dominion Energy's application).
Following a similar approach to the one described for foundation installation, Tetra Tech calculated the ranges to the defined acoustic thresholds using a maximum received level-over-depth approach where the maximum received sound level that occurs within the water column at each sampling point was used. Tetra Tech calculated both the R
dBSea was used to derive the acoustic ranges to the Level B harassment threshold, assuming no sound attenuation, around the cable landfall site. This included the ensonified area that was truncated by any land, which yielded an area (approximately 1 km
Density data from Roberts
For some species where little density information is available (
Given that use of the vibratory hammer during cofferdam installation and removal may occur on up to 6 days per cofferdam (3 days for installation and 3 days for removal), a max total of 54 days was assumed necessary for all 9 cofferdams. To calculate exposures, the highest average seasonal marine mammal densities were multiplied by the daily ensonified area (29.04 km
Given the small distances to the Level A harassment isopleths, Level A harassment incidental to this activity is not anticipated, even absent mitigation. Therefore, Dominion Energy did not request, and NMFS is not authorizing, Level A harassment related to cofferdam installation and removal.
Calculated take estimates for temporary cofferdams were then adjusted, for some species, based on group size characteristics known through the scientific literature and received sighting reports from previous projects and/or surveys. These group size estimates for cofferdam installation and removal are described below and were incorporated into the estimated take to yield the requested and authorized take estimate:
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Given that take by Level B harassment is precautionarily authorized, assuming 2 years of foundation installation, for Clymene dolphins, false killer whales, melon-headed whales, and pygmy sperm whales, and given the nearshore nature of cable landfall activities, no additional takes (and therefore, no group size adjustments) have been authorized for temporary cofferdam installation and removal activities.
Additionally, beyond group size adjustments, some slight modifications were performed for some species, including for harbor seals, gray seals, short- and long-finned pilot whales, and bottlenose dolphins. More specifically, the takes requested were accrued based on a 50/50 split for both pinniped species, as the Roberts
Below we present the estimated take and maximum amount of take authorized during temporary cofferdam installation and removal during the 5-year effective period for the CVOW-C Project (Table 14). Take by Level A harassment was not requested by Dominion Energy, and it is neither expected nor authorized by NMFS. The take authorized accounts for three days for installation and 3 days for removal, for a total of 6 days for each of 9 cofferdams (54 days total). To be conservative, Dominion Energy has requested take, by Level B harassment, based on the highest exposures predicted by the density-based take estimates, with some slight modifications to account for group sizes for some species.
Although North Atlantic right whales do migrate in coastal waters and have been seen off Virginia Beach, Virginia, they are not expected to occur in the nearshore waters where work will be occurring. The amount of work considered here is limited and would be conducted during a time when North Atlantic right whales are less likely to be migrating in this area. The distance to the Level B harassment isopleth (3.1 km) for installation and removal of the sheet piles associated with the cofferdams and the maximum distance to the Level A isopleth (0.11 km) remain in shallow waters in the nearshore environment and for a very short period of time (approximately 1 hour daily); thus, it is unlikely that right whales (or most species of marine mammals considered here) would be exposed to vibratory pile driving during cofferdam installation and removal at levels close to the 120 dB Level B harassment threshold or to the Level A harassment thresholds. Hence, Dominion Energy did not request take of North Atlantic right whales incidental to this activity and NMFS is not authorizing it.
We note that these would be the maximum number of animals that may be harassed during vibratory pile driving for nearshore temporary cofferdams as the analysis conservatively assumes each exposure is a different animal. This is unlikely to be the case for all species shown here but is the most comprehensive assessment of the level of impact from this activity.
To facilitate nearshore, trenchless installation for the export cables to shore, Direct Steerable Pipe Tunneling equipment utilizing a steerable tunnel boring machine would excavate ground while goal posts are used to guide steel casing pipes behind the tunnel boring machine using a pipe thruster. For tunneling and boring activities, only the impact hammer is expected to cause harassment to marine mammals; all other equipment (
Tetra Tech applied the Level A harassment cumulative PTS criteria to a specific tab (for impact pile driving) spreadsheet (User Spreadsheet) that reflects NOAA Fisheries' 2018 Revisions to Technical Guidance (NOAA Fisheries, 2018a). The User Spreadsheet relies on overriding default values, calculating individual adjustment factors, and using the difference between levels with and without weighting functions for each of the five categories of hearing groups. The new adjustment factors in the spreadsheets allow for the calculation of SEL
To calculate the distance to the acoustic threshold for Level B harassment of marine mammals, Tetra Tech utilizing a spread calculation to estimate the horizontal distance to the 160 dB re 1 μPa isopleth:
We note that while these methodologies provided by NOAA Fisheries are able to calculate the maximum distances to the Level A harassment and Level B harassment thresholds, these calculations do not allow for the inclusion of site-specific environmental parameters, as was described for activities analyzed through dBSea.
The results of this analysis are presented below in Table 15 and are presented in terms of the R
Given the small distances to Level A harassment isopleths, Level A harassment incidental to this activity is not anticipated, even absent mitigation. Therefore, Dominion Energy is not requesting, and NMFS is no authorizing Level A harassment related to goal post installation. The acoustic ranges to the Level B harassment threshold, assuming no sound attenuation, were used to calculate the ensonified area around the cable landfall site. The Ensonified Area is calculated as the following:
To accurately account for the greatest level of impact (via behavioral harassment) to marine mammals, Tetra Tech applied the evaluated maximum Level B harassment distance (1,450 m) as the basis for determining potential takes. To get an accurate value of the total ensonified area within the aquatic environment, the isopleth was overlaid
In the same approach as was undertaken by the temporary cofferdams, the greatest ensonified area was intersected with the density grid cells for each individual species to select all of those grid cells that the ensonified area intersects to estimate the marine mammal density relevant to the temporary goal posts. Maximum monthly densities (
To calculate exposures, the highest average seasonal marine mammal densities from Table 16 were multiplied by the daily ensonified area (4.98 km
The take estimates for Level B harassment related to temporary goal post installation were then adjusted, for some species, based on group size characteristics known through the scientific literature and received sighting reports from previous projects and/or surveys. These group size estimates for temporary goal post installation are described below and were incorporated into the estimated take to yield the requested and authorized take estimate:
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Take by Level B harassment is authorized as a precaution assuming 2 years of foundation installation, for Clymene dolphins, false killer whales, melon-headed whales, and pygmy sperm whales. Given the nearshore nature of cable landfall activities, no additional take (and therefore, no group size adjustments) has been authorized for temporary goal post installation and removal activities.
Additionally, beyond group size adjustments, some slight modifications were performed for some species, including harbor seals, gray seals, short- and long-finned pilot whales, and bottlenose dolphins. More specifically, the takes requested were accrued based on a 50/50 split for both pinniped species, as the Roberts
Below we present the estimated take and maximum amount of take authorized during temporary goal post installation during the 5-year effective period for the CVOW-C Project (Table 16). Take by Level A harassment was not requested by Dominion Energy, and it is not expected or authorized by NMFS. These authorized take estimates take into account 54 days total for temporary goal post activities, including installation and removal, at a rate of 2 steel pipe piles installed per day over 130 minutes.
We note that these would be the maximum number of animals that may be harassed during impact pile driving for nearshore temporary goal posts as the analysis conservatively assumes each exposure is a different animal. This is unlikely to be the case for all species shown here but is the most comprehensive assessment of the level of impact from this activity.
Dominion Energy's HRG survey activities include the use of impulsive (
Specific to HRG surveys, in order to better consider the narrower and directional beams of the sources, NMFS has developed a tool for determining the sound pressure level (SPL
NMFS considers the data provided by Crocker and Fratantonio (2016) to represent the best available information on source levels associated with HRG equipment and, therefore, recommends that source levels provided by Crocker and Fratantonio (2016) be incorporated in the method described above to estimate ranges to the Level A harassment and Level B harassment isopleths. In cases when the source level for a specific type of HRG equipment is not provided in Crocker and Fratantonio (2016), NMFS recommends that either the source levels provided by the manufacturer be used, or, in instances where source levels provided by the manufacturer are unavailable or unreliable, a proxy from Crocker and Fratantonio (2016) be used instead. Tetra Tech utilized the following criteria for selecting the appropriate inputs into the NMFS User Spreadsheet Tool (NMFS, 2018):
(1) For equipment that was measured in Crocker and Fratantonio (2016), the reported source level for the most likely operational parameters was selected.
(2) For equipment not measured in Crocker and Fratantonio (2016), the best available manufacturer specifications were selected. Use of manufacturer
(3) For equipment that was not measured in Crocker and Fratantonio (2016) and did not have sufficient manufacturer information, the closest proxy source measured in Crocker and Fratantonio (2016) was used.
The Geo Marine sparker measurements and specifications were provided by the manufacturer. Crocker and Fratantonio (2016) provide S-Boom measurements using two different power sources (CSP-D700 and CSP-N). The CSP-D700 power source was used in the 700 joules (J) measurements but not in the 1,000 J measurements. The CSP-N source was measured for both 700 J and 1,000 J operations but resulted in a lower source level; therefore, the single maximum source level value was used for both operational levels of the S-Boom.
Table 17 identifies all the representative survey equipment that operates below 180 kHz (
Results of modeling using the methodology described above indicated that, of the HRG equipment planned for use by Dominion Energy that has the potential to result in Level B harassment of marine mammals, sound produced by the GeoMarine Dual 400 sparker would propagate furthest to the Level B harassment isopleth (100 m (328 ft); Table 17). For the purposes of take estimation, it was conservatively assumed that sparker would be the dominant acoustic source for all survey days (although, again, this may not always be the case). Thus, the range to the isopleth corresponding to the threshold for Level B harassment and the boomer and sparkers (100 m) were used as the basis of take calculations for all marine mammals. This is a conservative approach, as the actual sources used on individual survey days, or during a portion of a survey day, may produce smaller distances to the Level B harassment isopleth.
To estimate densities for the HRG surveys occurring both within the Lease Area and within the Export Cable Routes for the CVOW-C Project based on the Roberts
As previously stated, of the HRG equipment planned for use by Dominion Energy that has the potential to result in Level B harassment of marine mammals, sound produced by the GeoMarine Dual 400 sparker would propagate furthest to the Level B harassment isopleth (100 m). This maximum range to the Level B harassment threshold and the estimated trackline distance traveled per day by a given survey vessel (
The ZOI is a representation of the maximum extent of the ensonified area around a HRG sound source over a 24-hr period. The ZOI for each piece of equipment operating at or below 180 kHz was calculated per the following formula:
The largest daily ZOI (111.6 km
As previously described, this assumes a total length of surveys that will occur within the CVOW-C Project Area as 64,264 km
For HRG surveys, density data from Roberts
For most species or species groups, monthly densities are available, though in some cases insufficient data are available or we are unable to differentiate species groups by individual
The take estimates were then adjusted, for some species, based on group size and sighting reports from previous projects and/or surveys. These group size estimates for HRG surveys are described below and were incorporated into the estimated take to yield the requested and authorized take estimate:
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Given the very small zone sizes associated with HRG surveys and the lower density/occurrence of these species, no take in addition to that already authorized for foundation installation (which has much larger acoustic ranges) has been authorized for the following species: false killer whales, melon-headed whales, Clymene dolphins, and pygmy sperm whales. Similar to other activities, the density-based exposure estimates were adjusted due to the manner in which density data is presented in the Duke models for harbor seals, gray seals, short- and long-finned pilot whales, and bottlenose dolphins. More specifically, the takes requested were split 50/50 for both pinniped species, as the Roberts
Below we present the maximum amount of take authorized during HRG surveys occurring during the 5-year effective period for the CVOW-C Project (Table 21). Take by Level A harassment was not requested by Dominion Energy, and it is neither expected nor authorized by NMFS. We note that these would be the maximum number of animals that may be harassed during HRG surveys as the analysis conservatively assumes each exposure is a different animal. This is unlikely to be the case for all species shown here but is the most comprehensive assessment of the level of impact from this activity.
The number of Level A harassment and Level B harassment takes authorized during WTG and OSS foundation installation, cable landfall construction, and HRG surveys are presented in Table 22. The mitigation and monitoring measures provided in the Mitigation and Monitoring and Reporting sections are activity-specific and are designed to minimize, to the extent practicable, acoustic exposures to marine mammal species.
The take numbers NMFS is authorizing (Tables 22 and 23) are considered the maximum number that could occur for the following key reasons:
• The authorized take accounts for 183 pile driving events when only 176 foundations may be installed. It could be that no piles will require the need to be re-driven.
• The amount of Level A harassment authorized considered the maximum of up to two monopiles per day being installed and used acoustic ranges that do not account for animal movement.
• The number of authorized takes by Level A harassment does not account for the likelihood that marine mammals will avoid a stimulus when possible before the individual accumulates enough acoustic energy to potentially cause auditory injury.
• All take estimates assumed all piles are installed in the month with the highest average seasonal and/or annual densities for each marine mammal species and/or stock based on the construction schedule.
• Dominion Energy assumed the maximum number of temporary cofferdams (up to 9) and goal posts (up to 108) would be installed when, during construction, fewer piles may be installed and, in the case of cofferdams, may not be installed at all (Dominion Energy may use a gravity-cell structure
• The number of authorized takes by Level B harassment does not account for the effectiveness of the required mitigation and monitoring measures for any species, with the exception of spatio-temporal restrictions on pile driving (
The Year 1 authorized take includes HRG surveys, vibratory and impact installation of WTG and OSS foundations, the impact installation and removal of temporary goal posts, and the vibratory installation and removal of temporary cofferdams. Year 2 includes HRG surveys and the vibratory and impact installation of WTG and OSS foundations. Years 3, 4, and 5 each include HRG surveys only. Dominion Energy has noted that Year 3 and Year 4 may include some installation of foundation piles for WTGs if they fall behind their construction schedule. However, if this occurs, this would just reduce the number of WTGs installed in Year 2. Exact durations for HRG surveys in each construction are not given although estimates are provided above and are repeated here: 65 days in 2024, 249 days in 2025, 58 days in 2026, and 368 days in each of 2027 and 2028. These estimates are based on the effort of two concurrently operating survey vessels.
Table 22 shows the authorized take of each species for each year based on the planned activities. Tables 23 and 24 show the total authorized take over 5 years and the maximum take authorized in any one year, respectively.
In making the negligible impact determination, NMFS assesses both the greatest number of authorized takes of each marine mammal species or stocks that could occur within any one year, which in the case of this rule is based on the predicted take in either Year 1 (2024) or Year 2 (2025), and the total taking of each marine mammal species or stock during the five-year effective period of the rule. In this calculation, the maximum estimated number of Level A harassment takes in any one year is summed with the maximum estimated number of Level B harassment takes in any one year for each species to yield the highest number of estimated takes that could occur in any year. We recognize that certain activities could shift within the 5-year effective period of the rule; however, the rule allows for that flexibility and the takes are not expected to exceed those shown in Table 24 in any one year.
As described in the Changes From the Proposed to Final Rule section, we have made changes to some mitigation measures since the proposed rule. These changes are described in detail in the sections below and, otherwise, the mitigation requirements have not changed since the proposed rule.
In order to promulgate a rulemaking under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to the activity, and other means of effecting the least practicable adverse impact on the species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of the species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS' regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting the activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned); and,
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, personnel safety, practicality of implementation, and, in the case of a military readiness activity, impact on the effectiveness of the military readiness activity.
The mitigation strategies described below are consistent with those required and successfully implemented under previous incidental take authorizations issued in association with in-water construction activities (
Generally speaking, the mitigation measures considered and required here fall into three categories: spatio-temporal (seasonal and daily) work restrictions, real-time measures (shutdown, clearance, and vessel strike avoidance), and noise attenuation/reduction measures. Spatio-temporal restrictions, such as seasonal work restrictions, are designed to avoid or minimize operations when marine mammals are concentrated or engaged in behaviors that make them more susceptible or make impacts more likely. Such restrictions reduce both the number and severity of potential takes and are effective in reducing both chronic (longer-term) and acute effects. Real-time measures, such as implementation of shutdown and clearance zones, as well as vessel strike avoidance measures, are intended to reduce the probability or severity of harassment by taking steps in real time once a higher-risk scenario is identified (
Below, we briefly describe the required training, coordination, and vessel strike avoidance measures that apply to all specified activities and then we describe the measures that apply to specific specified activities (
NMFS requires all Dominion Energy employees and contractors conducting activities on the water, including, but not limited to, all vessel captains and crew are trained in marine mammal detection and identification, communication protocols, and all required measures to minimize impacts on marine mammals and support Dominion Energy's compliance with the LOA, if issued. Additionally, all relevant personnel and the marine mammal species monitoring team(s) are required to participate in joint, onboard briefings prior to the beginning of project activities. The briefing must be repeated whenever new relevant personnel (
Prior to the start of in-water construction activities, vessel operators and crews would receive training about marine mammals and other protected species known or with the potential to occur in the Project Area, making observations in all weather conditions, and vessel strike avoidance measures. In addition, training would include information and resources available regarding applicable Federal laws and regulations for protected species. Dominion Energy will provide documentation of training to NMFS.
Dominion Energy must use available sources of information on North Atlantic right whale presence, including daily monitoring of the Right Whale Sightings Advisory System, monitoring of U.S. Coast Guard very high frequency (VHF) Channel 16 throughout each day to receive notifications of any sightings, and information associated with any regulatory management actions (
This final rule contains numerous vessel strike avoidance measures that reduce the risk that a vessel and marine mammal could collide. While the likelihood of a vessel strike is generally low, they are one of the most common ways that marine mammals are seriously injured or killed by human activities. Therefore, enhanced mitigation and monitoring measures are required to avoid vessel strikes to the extent practicable. While many of these measures are proactive intending to avoid the heavy use of vessels during times when marine mammals of particular concern may be in the area, several are reactive and occur when a project personnel sights a marine mammal. The mitigation requirements are described generally here and in detail in the regulation text at the end of this final rule (see 50 CFR 217.294(b)). Dominion Energy will be required to comply with these measures except under circumstances when doing so would create an imminent and serious threat to a person or vessel or to the extent that a vessel is unable to maneuver and because of the inability to maneuver, the vessel cannot comply.
While underway, Dominion Energy is required to monitor for and maintain a minimum separation distance from marine mammals and operate vessels in a manner that reduces the potential for vessel strike. Regardless of the vessel's size, all vessel operators, crews, and dedicated visual observers (
All project vessels, regardless of size, must maintain the following minimum separation zones: 500 m from North Atlantic right whales; 100 m from sperm whales and non-North Atlantic right whale baleen whales; and 50 m from all delphinid cetaceans and pinnipeds (an exception is made for those species that approach the vessel (
All of the project-related vessels are required to comply with existing NMFS vessel speed restrictions for North Atlantic right whales and the measures within this rulemaking for operating vessels around North Atlantic right whales and other marine mammals. When NMFS vessel speed restrictions are not in effect and a vessel is traveling at greater than 10 kn, in addition to the required dedicated visual observer, Dominion Energy is required to monitor the crew transfer vessel transit corridor (the path crew transfer vessels take from port to any work area) in real-time with PAM prior to and during transits. To maintain awareness of North Atlantic right whale presence, vessel operators, crew members, and the marine mammal monitoring team would monitor U.S. Coast Guard VHF Channel 16, WhaleAlert, the Right Whale Sighting Advisory System (RWSAS), and the PAM system. Any marine mammal observed by project personnel must be immediately communicated to any on-duty PSOs, PAM operator(s), and all vessel captains. Any North Atlantic right whale or large whale observation or acoustic detection by PSOs or PAM operators must be conveyed to all vessel captains.
All vessels would be equipped with an AIS and Dominion Energy must report all MMSI numbers to NMFS Office of Protected Resources prior to initiating in-water activities. Dominion Energy would submit a NMFS-approved North Atlantic Right Whale Vessel Strike Avoidance Plan at least 180 days prior to commencement of vessel use. Dominion Energy's compliance with these measures will reduce the likelihood of vessel strike to the extent practicable. These measures increase awareness of marine mammals in the vicinity of project vessels and require project vessels to reduce speed when marine mammals are detected (by PSOs, PAM, and/or through another source,
Spatio-temporal work restrictions in places where marine mammals are concentrated, engaged in biologically important behaviors, and/or present in sensitive life stages are effective measures for reducing the magnitude and severity of human impacts. Seasonal work restrictions provide additional benefit for marine mammals during periods where there could be higher occurrence or presence in the Project Area and specified geographic area. Dominion Energy proposed, and NMFS is requiring, seasonal work restrictions to minimize the risk of noise exposure to North Atlantic right whales incidental to certain specified activities to the extent practicable. These seasonal work restrictions are expected to greatly reduce the number of takes of North Atlantic right whales. These seasonal restrictions also afford protection to other marine mammals that are known to use the Project Area with greater frequency from November 1st through April 30th, including other baleen whales.
As described previously, Dominion Energy proposed, and NMFS is requiring, that no foundation pile driving activities occur November 1st through April 30th. Dominion Energy has planned to construct the cofferdams and goal posts from May 1st through October 31st within the first year of the effective period of the regulations and LOA. However, NMFS is not requiring any seasonal restrictions due to the relatively short duration of work and low associated impacts to marine mammals. Although North Atlantic right whales do migrate in coastal waters, they do not typically migrate very close to shore off of Virginia and/or within Virginia nearshore environments where work would be
North Atlantic right whales may be present in and around the Project Area throughout the year (
As described previously, no foundation pile driving activities may occur November 1st through April 30th. Dominion Energy has planned to construct the cofferdams and goal posts from May 1st through October 31st within the first year of the effective period of the regulations and LOA. However, NMFS is not requiring any seasonal restrictions due to the relatively short duration of work and low associated impacts to marine mammals. Although North Atlantic right whales do migrate in coastal waters, they do not typically migrate very close to shore off of Virginia and/or within Virginia nearshore environments where work would be occurring. Given the distance to the Level B harassment isopleth is conservatively modeled at approximately 3.1 km (vibratory pile driving for cofferdams) and 1.5 km (impact pile driving of goal posts), any exposure to pile driving during cofferdams and goal posts installation would be at levels closer to the 120-dB Level B harassment threshold and not at louder source levels. NMFS is not adding seasonal restrictions to HRG surveys; however, Dominion Energy would only perform a predetermined amount of 24-hour survey effort for a specific number of days within specific years (
NMFS is also requiring spatio-temporal restrictions for some activities. Within any 24-hour period, Dominion Energy would be limited to installing a maximum of two monopile WTG foundations (one standard and one hard-to-drive) or two pin piles for OSS jacket foundations, although some days Dominion Energy would only install one monopile foundation for WTGs. NMFS notes that Dominion Energy did not request to initiate foundation pile driving during nighttime hours. Because of this, Dominion Energy would only initiate foundation pile driving (inclusive of both vibratory and impact) during daylight hours within their specific pile driving window (
Any and all vibratory pile driving associated with cofferdams and goal posts installation and removal would only be able to occur during daylight hours. Lastly, given the very small Level B harassment zone associated with HRG survey activities and no anticipated or authorized Level A harassment, NMFS is not requiring any daily restrictions for HRG surveys.
More information on activity-specific seasonal and daily restrictions can be found in the regulatory text at the end of this rulemaking.
Dominion Energy is required to employ NAS, also known as noise attenuation systems, during all foundation installation (inclusive of vibratory and impact pile driving) to reduce the sound pressure levels that are transmitted through the water in an effort to reduce ranges to acoustic thresholds and minimize, to the extent practicable, any acoustic impacts resulting from these activities. Noise abatement systems, such as bubble curtains, are used to decrease the sound levels radiated from a source. Bubbles create a local impedance change that acts as a barrier to sound transmission. The size of the bubbles determines their effective frequency band, with larger bubbles needed for lower frequencies. There are a variety of bubble curtain systems, confined or unconfined bubbles, and some with encapsulated bubbles or panels. Attenuation levels also vary by type of system, frequency band, and location. Small bubble curtains have been measured to reduce sound levels but effective attenuation is highly dependent on depth of water, current, and configuration and operation of the curtain (Austin
The literature presents a wide array of observed attenuation results for bubble curtains. The variability in attenuation levels is the result of variation in design
Dominion Energy is required to use at least a double bubble curtain. Should the research and development phase of newer systems demonstrate effectiveness, as part of adaptive management, Dominion Energy may submit data on the effectiveness of these systems and request approval from NMFS to use them during foundation installation activities.
Dominion Energy is required to submit an SFV plan to NMFS for approval at least 180 days prior to installing foundations. They are also required to submit interim and final SFV data results to NMFS and make corrections to the noise attenuation systems in the case that any SFV measurements demonstrate noise levels are above those modeled, assuming 10 dB. These frequent and immediate reports allow NMFS to better understand the sound fields to which marine mammals are being exposed and require immediate corrective action should they be misaligned with anticipated noise levels within our analysis.
Noise abatement devices are not required during HRG surveys, cofferdam (sheet pile) installation and removal, and goal post (pipe pile) installation and removal. Regarding cofferdam sheet pile and goal post pipe pile installation and removal, NAS is not practicable to implement due to the physical nature of linear sheet piles and angled pipe piles and here is a low risk for impacts to marine mammals due to the short work duration and lower noise levels produced during the activities. Regarding HRG surveys, NAS cannot practicably be employed around a moving survey ship, but Dominion Energy is required to make efforts to minimize source levels by using the lowest energy settings on equipment that has the potential to result in harassment of marine mammals (
NMFS requires the establishment of both clearance and, where technically feasible, shutdown zones during project activities that have the potential to result in harassment of marine mammals. The purpose of “clearance” of a particular zone is to minimize potential instances of auditory injury and more severe behavioral disturbances by delaying the commencement of an activity if marine mammals are near the activity. The purpose of a shutdown is to prevent a specific acute impact, such as auditory injury or severe behavioral disturbance of sensitive species, by halting the activity.
All relevant clearance and shutdown zones during project activities would be monitored by NMFS-approved PSOs and/or PAM operators (as described in the regulatory text at the end of this rulemaking). At least one PAM operator must review data from at least 24 hours prior to any foundation installation and must actively monitor hydrophones for 60 minutes prior to commencement of these activities. Any sighting or acoustic detection of a North Atlantic right whale triggers a delay to commencing pile driving and shutdown.
Prior to the start of certain specified activities (foundation installation, cofferdam install and removal, HRG surveys), Dominion Energy must ensure designated areas (
For cofferdam and goal post pile driving and HRG surveys, monitoring must be conducted for 30 minutes prior to initiating activities and the clearance zones must be free of marine mammals during that time.
For any other in-water construction heavy machinery activities (
Once an activity begins, any marine mammal entering their respective shutdown zone would trigger the
After shutdown, foundation pile driving may be reinitiated once all clearance zones are clear of marine mammals for the minimum species-specific periods, or, if required to maintain pile stability, at which time the lowest hammer energy must be used to maintain stability. If pile driving has been shut down due to the presence of a North Atlantic right whale, pile driving must not restart until the North Atlantic right whale has neither been visually nor acoustically detected for 30 minutes. Upon re-starting pile driving, soft-start protocols must be followed if pile driving has ceased for 30 minutes or longer.
The clearance and shutdown zone sizes vary by species and are shown in Tables 25 and 26, 27, 28, and 29 for each planned activity. Dominion Energy is allowed to request modification to these zone sizes pending results of sound field verification (see regulatory text at the end of this rulemaking). Any changes to zone size would be part of adaptive management and would require NMFS' approval.
The use of a soft-start or ramp-up procedure is believed to provide additional protection to marine mammals by warning them or providing them with a chance to leave the area prior to the hammer or HRG equipment operating at full capacity. Soft-start typically involves initiating hammer operation at a reduced energy level (relative to full operating capacity) followed by a waiting period. Dominion Energy must utilize a soft-start protocol for impact pile driving of foundation piles (monopiles and pin piles). Typically, NMFS requires a soft-start procedure of the applicant performing four to six strikes per minute at 10 to 20 percent of the maximum hammer energy, for a minimum of 20 minutes. NMFS notes that it is difficult to specify a reduction in energy for any given hammer because of variation across drivers and installation conditions. However, Dominion Energy's engineers have expressed concern with this approach as it could potentially damage the impact pile driving hammer. As such, specific soft start protocols considering final design details, including site-specific soil properties and other considerations, will be incorporated into the LOA, if issued. Dominion Energy, with approval from NMFS, may also modify the soft start procedures through adaptive management.
HRG survey operators are required to ramp-up sources when the acoustic sources are used unless the equipment operates on a binary on/off switch. The ramp-up would involve starting from the smallest setting to the operating level over a period of approximately 30 minutes. No soft-start or ramp-up is required for nearshore cable landfall activities given the type of activity (
Where required, soft-start and ramp-up will be required at the beginning of each day's activity and at any time following a cessation of activity of 30 minutes or longer. Prior to soft-start or ramp-up beginning, the operator must receive confirmation from the PSO that the clearance zone is clear of any marine mammals.
While the likelihood of Dominion Energy's fishery monitoring surveys impacting marine mammals is minimal, NMFS requires Dominion Energy to adhere to gear and vessel mitigation measures to reduce potential impacts to the extent practicable. In addition, all crew undertaking the fishery monitoring survey activities are required to receive protected species identification training prior to activities occurring and attend
Based on our evaluation of the mitigation measures, as well as other measures considered by NMFS, NMFS has determined that these measures will provide the means of affecting 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.
As noted in the Changes From the Proposed to Final Rule section, we have added, modified, or clarified a number of monitoring and reporting measures since the proposed rule. These changes are described in detail in the sections below and, otherwise, the marine mammal monitoring and reporting requirements have not changed since the proposed rule.
In order to promulgate a rulemaking 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. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
Separately, monitoring is also regularly used to support mitigation implementation, which is referred to as mitigation monitoring, and monitoring plans typically include measures that both support mitigation implementation and increase our understanding of the impacts of the activity on marine mammals.
During the planned activities, visual monitoring by NMFS-approved PSOs would be conducted before, during, and after all impact pile driving, vibratory pile driving, and HRG surveys. PAM would also be conducted during foundation pile driving. Visual observations and acoustic detections would be used to support the activity-specific mitigation measures (
Dominion Energy is required to employ NMFS-approved PSOs and PAM operators. PSOs are trained professionals who are tasked with visual monitoring for marine mammals during pile driving and HRG surveys. The primary purpose of a PSO is to carry out the monitoring, collect data, and, when appropriate, call for the implementation of mitigation measures. In addition to visual observations, NMFS requires Dominion Energy to conduct PAM by PAM operators during foundation pile driving and vessel transit. The inclusion of PAM, which would be conducted by NMFS-approved PAM operators, following a standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind, alongside visual data collection is valuable to provide the most accurate record of species presence as possible and, together, these two monitoring methods are well understood to provide best results when combined (
The exact configuration and number of PAM systems depends on the size of the zone(s) being monitored, the amount of noise expected in the area, and the characteristics of the signals being monitored. More closely spaced hydrophones would allow for more directionality, and perhaps, range to the vocalizing marine mammals; although, this approach would add additional costs and greater levels of complexity to the project. Larger baleen cetacean species (
NMFS does not formally administer any PSO or PAM operator training program or endorse specific providers, but will approve PSOs and PAM operators that have successfully completed courses that meet the curriculum and trainer requirements referenced below and further specified in the regulatory text at the end of this rulemaking.
NMFS will provide PSO and PAM operator approvals in the context of the need to ensure that PSOs and PAM operators have the necessary training and/or experience to carry out their duties competently. In order for PSOs
Conditionally-approved PSOs and PAM operators would be paired with an unconditionally-approved PSO (or PAM operator, as appropriate) to ensure that the quality of marine mammal observations and data recording is kept consistent. Additionally, activities requiring PSO and/or PAM operator monitoring must have a lead on duty. The visual PSO field team, in conjunction with the PAM team (
Although PSOs and PAM operators must be approved by NMFS, third-party observer providers and/or companies seeking PSO and PAM operator staffing should expect that those having satisfactorily completed acceptable training and with the requisite experience (if required) will be quickly approved. Dominion Energy is required to request PSO and PAM operator approvals 60 days prior to those personnel commencing work. An initial list of previously approved PSO and PAM operators must be submitted by Dominion Energy at least 30 days prior to the start of the project. Should Dominion Energy require additional PSOs or PAM operators throughout the project, Dominion Energy must submit a subsequent list of pre-approved PSOs and PAM operators to NMFS at least 15 days prior to planned use of that PSO or PAM operator. A PSO may be trained and/or experienced as both a PSO and PAM operator and may perform either duty, pursuant to scheduling requirements (and vice versa).
A minimum number of PSOs would be required to actively observe for the presence of marine mammals during certain project activities with more PSOs required as the mitigation zone sizes increase. A minimum number of PAM operators would be required to actively monitor for the presence of marine mammals during foundation installation. The types of equipment required (
In addition to monitoring duties, PSOs and PAM operators are responsible for data collection. The data collected by PSO and PAM operators and subsequent analysis provide the necessary information to inform an estimate of the amount of take that occurred during the project, better understand the impacts of the project on marine mammals, address the effectiveness of monitoring and mitigation measures, and to adaptively manage activities and mitigation in the future. Data reported includes information on marine mammal sightings, activity occurring at time of sighting, monitoring conditions, and if mitigative actions were taken. Specific data collection requirements are contained within the regulations at the end of this rulemaking.
Dominion Energy is required to submit a Pile Driving Marine Mammal Monitoring Plan and a PAM Plan to NMFS 180 days in advance of foundation installation activities. The Plan must include details regarding PSO and PAM monitoring protocols and equipment proposed for use. More specifically, the PAM Plan must include a description of all proposed PAM equipment, address how the proposed passive acoustic monitoring must follow standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind as described in
Dominion Energy must conduct SFV measurements for all foundation pile-driving activities associated with the installation of, at minimum, the first 3 monopile foundations, and for all 3 jacket foundations used for OSS, assuming all 12 pin piles are installed (n=4 pin piles per OSS). SFV measurements must continue until at least three consecutive monopiles demonstrate distances to thresholds are at or below those modeled, assuming 10 dB of attenuation. Subsequent SFV measurements are also required should larger piles be installed, or additional piles be driven that are anticipated to produce longer distances to harassment isopleths than those previously measured (
Prior to any construction activities occurring, Dominion Energy would provide a report to NMFS Office of Protected Resources that demonstrates that all Dominion Energy personnel, including the vessel crews, vessel captains, PSOs, and PAM operators, have completed all required trainings.
NMFS would require standardized and frequent reporting from Dominion Energy during the life of the regulations and LOA. All data collected relating to the Project would be recorded using industry-standard software (
If a sighting of a stranded, entangled, injured, or dead marine mammal occurs, the sighting would be reported to NMFS Office of Protected Resources, the NMFS Greater Atlantic Stranding Coordinator for the New England/Mid-Atlantic area (866-755-6622), and the U.S. Coast Guard within 24 hours. If the injury or death was caused by a project activity, Dominion Energy must immediately cease all activities until NMFS Office of Protected Resources is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the LOA. NMFS Office of Protected Resources may impose additional measures to minimize the likelihood of further prohibited take and ensure MMPA compliance. Dominion Energy may not resume their activities until notified by NMFS Office of Protected Resources.
In the event of a vessel strike of a marine mammal by any vessel associated with the Project, Dominion Energy must immediately report the strike incident. If the strike occurs in the Greater Atlantic Region (Maine to Virginia), Dominion Energy must call the NMFS Greater Atlantic Stranding Hotline. Separately, Dominion Energy must also and immediately report the incident to NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office (GARFO). Dominion Energy must immediately cease all on-water activities until NMFS Office of Protected Resources is able to review the circumstances of the incident and determine what, if any, additional measures are appropriate to ensure compliance with the terms of the LOA. NMFS Office of Protected Resources may impose additional measures to minimize the likelihood of further prohibited take and ensure MMPA compliance. Dominion Energy may not resume their activities until notified by NMFS.
In the event of any lost gear associated with the fishery surveys, Dominion Energy must report to the GARFO as soon as possible or within 24 hours of the documented time of missing or lost gear. This report must include information on any markings on the gear and any efforts undertaken or planned to recover the gear.
The specifics of what NMFS Office of Protected Resources requires to be reported is listed at the end of this rulemaking in the regulatory text.
The regulations governing the take of marine mammals incidental to Dominion Energy's construction activities contain an adaptive management component. Our understanding of the effects of offshore wind construction activities (
The monitoring and reporting requirements in this final rule provide NMFS with information that helps us to better understand the impacts of the project's activities on marine mammals and informs our consideration of whether any changes to mitigation and monitoring are appropriate.
The use of adaptive management allows NMFS to consider new information and modify mitigation,
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 (
In the Estimated Take section, we discuss the estimated maximum number of takes by Level A harassment and Level B harassment that could occur incidental to Dominion Energy's specified activities based on the methods described. The impact that any given take would have is dependent on many case-specific factors that need to be considered in the negligible impact analysis (
The Description of the Specified Activities section of this preamble describes Dominion Energy's specified activities that may result in take of marine mammals and an estimated schedule for conducting those activities. Dominion Energy has provided a realistic construction schedule (
We base our analysis and negligible impact determination on the maximum number of takes that could occur and are authorized annually and across the effective period of these regulations and extensive qualitative consideration of other contextual factors that influence the degree of impact of the takes on the affected individuals and the number and context of the individuals affected. As stated before, the number of takes, both maximum annual and 5-year total, alone are only a part of the analysis.
To avoid repetition, we provide some general analysis in this Negligible Impact Analysis and Determination section that applies to all the species listed in Table 2, given that some of the anticipated effects of Dominion Energy's construction activities on marine mammals are expected to be relatively similar in nature. Then, we subdivide into more detailed discussions for mysticetes, odontocetes, and pinnipeds, which have broad life-history traits that support an overarching discussion of some factors considered within the analysis for those groups (
Last, we provide a negligible impact determination for each species or stock, providing species or stock-specific information or analysis, where appropriate (
As described previously, no serious injury or mortality is anticipated or authorized in this rule. Any Level A harassment authorized would be in the form of auditory injury (
In general, NMFS anticipates that impacts on an individual that has been harassed are likely to be more intense when exposed to higher received levels and for a longer duration (though this is in no way a strictly linear relationship for behavioral effects across species, individuals, or circumstances) and less severe impacts result when exposed to lower received levels and for a brief duration. However, there is also growing evidence of the importance of contextual factors such as distance from a source in predicting marine mammal behavioral response to sound—
In the range of behavioral effects that might be expected to be part of a response that qualifies as an instance of Level B harassment by behavioral disturbance (which by nature of the way it is modeled/counted, occurs within 1 day), the less severe end might include exposure to comparatively lower levels of a sound, at a greater distance from the animal, for a few or several minutes. A less severe exposure of this nature could result in a behavioral response such as avoiding an area that an animal would otherwise have chosen to move through or feed in for some amount of time or breaking off one or a few feeding bouts. More severe effects could occur if an animal gets close enough to the source to receive a comparatively higher level, is exposed continuously to one source for a longer time or is exposed intermittently to different sources throughout a day. Such effects might result in an animal having a more severe flight response and leaving a larger area for a day or more or potentially losing feeding opportunities for a day. However, such severe behavioral effects are expected to occur infrequently.
Many species perform vital functions, such as feeding, resting, traveling, and socializing on a diel cycle (24-hour cycle). Behavioral reactions to noise exposure, when taking place in a biologically important context, such as disruption of critical life functions, displacement, or avoidance of important habitat, are more likely to be significant if they last more than 1 day or recur on subsequent days (Southall
It is also important to identify that the estimated number of takes does not necessarily equate to the number of individual animals Dominion Energy expects to harass (which is lower) but rather to the instances of take (
For Dominion Energy, impact pile driving of foundation piles is most likely to result in a higher magnitude and severity of behavioral disturbance than other activities (
Occasional, milder behavioral reactions are unlikely to cause long-term consequences for individual animals or populations, and even if some smaller subset of the takes is in the form of a longer (several hours or a day) and more severe response, if they are not expected to be repeated over numerous or sequential days, impacts to individual fitness are not anticipated. Also, the effect of disturbance is strongly influenced by whether it overlaps with biologically important habitats when individuals are present—avoiding biologically important habitats will provide opportunities to compensate for reduced or lost foraging (Keen
TTS is one form of Level B harassment that marine mammals may incur through exposure to Dominion Energy's activities and, as described earlier, the authorized takes by Level B harassment may represent takes in the form of behavioral disturbance, TTS, or both. As discussed in the Potential Effects of Specified Activities on Marine Mammals and their Habitat section of the proposed rule (88 FR 28656, May 4, 2023), in general, TTS can last from a few minutes to days, be of varying degree, and occur across different frequency bandwidths, all of which determine the severity of the impacts on the affected individual, which can range from minor to more severe. Impact and vibratory pile driving generate sounds in the lower frequency ranges (with most of the energy below 1-2 kHz but with a small amount energy ranging up to 20 kHz); therefore, in general and all else being equal, we anticipate the potential for TTS is higher in low-frequency cetaceans (
Generally, both the degree of TTS and the duration of TTS would be greater if the marine mammal is exposed to a higher level of energy (which would occur when the peak dB level is higher, or the duration is longer). The threshold for the onset of TTS was discussed previously (see the Estimated Take section of this preamble). However, source level is not the sole predictor of TTS. An animal would have to approach closer to the source or remain in the vicinity of the sound source appreciably longer to increase the received SEL, which would be difficult considering the required mitigation and the nominal speed of the receiving animal relative to the stationary sources such as impact pile driving. The recovery time of TTS is also of importance when considering the potential impacts from TTS. In TTS laboratory studies (as discussed in the Potential Effects of the Specified Activities on Marine Mammals and their Habitat section of the proposed rule (88 FR 28656, May 4, 2023)), some using exposures of almost an hour in duration or up to 217 SEL, almost all individuals recovered within 1 day (or less, often in minutes) and we note that while the pile-driving activities last for hours a day, it is unlikely that most marine mammals would stay in the close vicinity of the source long enough to incur more severe TTS. Overall, given the small number of times that any individual might incur TTS, the low degree of TTS and the short anticipated duration, and the unlikely scenario that any TTS overlapped the entirety of a critical hearing range, it is unlikely that TTS of the nature expected to result from the project's activities would result in behavioral changes or other impacts that would impact any individual's (of any hearing sensitivity) reproduction or survival.
NMFS is authorizing a very limited number (
There are no PTS data on cetaceans and only one instance of PTS being induced in older harbor seals (Reichmuth
Any PTS incurred from these activities would consist of minor degradation of hearing capabilities occurring predominantly at frequencies one-half to one octave above the frequency of the energy produced by pile driving (
The ultimate potential impacts of masking on an individual are similar to those discussed for TTS (
As our analysis for this project has indicated, we expect that impact pile driving foundations have the greatest potential to mask marine mammal signals, and this pile driving may occur for several, albeit intermittent, hours per day, for multiple days per year. Masking is fundamentally more of a concern at lower frequencies (which are pile-driving dominant frequencies), because low frequency signals propagate significantly further than higher frequencies and because they are more likely to overlap both the narrower low frequency calls of mysticetes, as well as many non-communication cues related to fish and invertebrate prey, and geologic sounds that inform navigation. However, the area in which masking would occur for all marine mammal species and stocks (
Construction activities may result in fish and invertebrate mortality or injury very close to the source, and all of Dominion Energy's activities may cause some fish to leave the area of disturbance. It is anticipated that any mortality or injury would be limited to a very small subset of available prey and the implementation of mitigation measures such as the use of a noise attenuation system (
Cable presence is not anticipated to impact marine mammal habitat as these would be buried, and any electromagnetic fields emanating from the cables are not anticipated to result in consequences that would impact marine mammals prey to the extent they would be unavailable for consumption.
The presence of wind turbines within the Lease Area could have longer-term impacts on marine mammal habitat, as the project would result in the persistence of the structures within marine mammal habitat for more than 30 years. The presence of structures such as wind turbines is, in general, likely to result in certain oceanographic effects in the marine environment and may alter aggregations and distribution of marine mammal zooplankton prey through changing the strength of tidal currents and associated fronts, changes in stratification, primary production, the degree of mixing, and stratification in the water column (Chen
As discussed in the Potential Effects of the Specified Activities on Marine Mammals and their Habitat section of the proposed rule (88 FR 28656, May 4, 2023), the project would consist of no more than 179 foundations (176 WTGs and 3 OSSs) in the Lease Area, which will gradually become operational following construction completion. While there are likely to be oceanographic impacts from the presence of the CVOW-C Project, meaningful oceanographic impacts relative to stratification and mixing that would significantly affect marine mammal habitat and prey over large areas in key foraging habitats during the effective period of the regulations are not anticipated (which considers 2-3 years of turbine operation). For these reasons, if oceanographic features are affected by the project during the effective period of the regulations, the impact on marine mammal habitat and their prey is likely to be comparatively minor.
The CVOW-C Biological Opinion provided an evaluation of the presence and operation of the Project on, among other species, marine mammals and their prey (see
This rulemaking includes a variety of mitigation measures designed to minimize to the extent practicable impacts on all marine mammals, with a focus on North Atlantic right whales (the latter is described in more detail below). For the dual approach of vibratory and impact pile driving of foundation piles, ten overarching measures are required, which are intended to reduce both the number and intensity of marine mammal takes: (1) seasonal/time of day work restrictions; (2) use of multiple PSOs to visually observe for marine mammals (with any detection within specifically designated zones that would trigger a delay or shutdown); (3) use of PAM to acoustically detect marine mammals, with a focus on detecting baleen whales (with any detection within designated zones triggering delay or shutdown); (4) implementation of clearance zones; (5) implementation of shutdown zones; (6) use of soft-start; (7) use of noise attenuation technology (
NMFS prescribes mitigation measures based on the following rationale. For activities with large harassment isopleths, Dominion Energy is committed to reducing the noise levels generated to the lowest levels practicable and is required to ensure that they do not exceed a noise footprint above that which was modeled, assuming a 10-dB attenuation. Use of a soft-start during impact pile driving will allow animals to move away from (
Five mysticete species (comprising five stocks) of cetaceans (North Atlantic right whale, fin whale, humpback whale, minke whale, and sei whale) may be taken by harassment. These species, to varying extents, utilize the specified geographic region, including the Project Area, for the purposes of migration, foraging, and socializing. Mysticetes are in the low-frequency hearing group.
Behavioral data on mysticete reactions to pile-driving noise are scant. Kraus
Mysticetes encountered in the Project Area are expected to primarily be migrating and may be engaged in opportunistic foraging behaviors. The extent to which an animal engages in these behaviors in the area is species-specific and varies seasonally. Many mysticetes are expected to predominantly be migrating through the Project Area towards or from feeding ground located further north (
The potential for repeated exposures is dependent upon the residency time of whales, with migratory animals unlikely to be exposed on repeated occasions and animals remaining in the area to be more likely exposed repeatedly. For mysticetes, where relatively low numbers of species-specific take by Level B harassment are predicted (compared to the abundance of each mysticete species or stock, such as is indicated in Table 23) and movement patterns suggest that individuals would not necessarily linger in a particular area for multiple days, each predicted take likely represents an exposure of a different individual; the behavioral impacts would, therefore, be expected to occur within a single day within a year—an amount that is not be expected to impact reproduction or survival. Species with longer residence time in the Project Area may be subject to repeated exposures across multiple days.
In general, for this project, the duration of exposures would not be continuous throughout any given day, and pile driving would not occur on all consecutive days within a given year due to weather delays or any number of logistical constraints Dominion Energy has identified. Species-specific analysis regarding potential for repeated exposures and impacts is provided below.
Fin, humpback, minke, and sei whales are the only mysticete species for which PTS is anticipated and authorized (refer back to Table 23). As described previously, PTS for mysticetes from impact pile driving may overlap frequencies used for communication, navigation, or detecting prey. However, given the nature and duration of the activity, the mitigation measures, and likely avoidance behavior, any PTS is expected to be of a small degree, would be limited to frequencies where pile-driving noise is concentrated (
North Atlantic right whales are listed as endangered under the ESA, and the western Atlantic stock is considered depleted and strategic under the MMPA.
For North Atlantic right whales, this rule authorizes up to 17 takes, by Level B harassment only, over the 5-year period, with a maximum annual allowable take of 7 (equating to approximately 2.07 percent of the stock abundance, if each take were considered to be of a different individual), with far lower numbers than that expected in the years without foundation installation (
The Mid-Atlantic, including the Project Area, may be a stopover site for migrating North Atlantic right whales moving to or from southeastern calving grounds. Northward migration occurs mainly during the months of March and April while southern transit typically takes place during the months of November and December (LaBrecque
North Atlantic right whales utilize areas outside of the Project Area for their main feeding, breeding, and calving activities. In general, North Atlantic right whales in the Project Area are expected to be engaging in migratory behavior. Given the species' migratory behavior in the Project Area, we anticipate individual whales would be typically migrating through the area during most months when foundation installation would occur (given the seasonal restrictions on foundation installation, rather than lingering for extended periods of time). Other work that involves either much smaller harassment zones (
As described in the Description of Marine Mammals in the Specified Geographic Region section, North Atlantic right whales are presently experiencing an ongoing UME (beginning in June 2017). Preliminary findings support human interactions, specifically vessel strikes and entanglements, as the cause of death for the majority of North Atlantic right whales. Given the current status of the North Atlantic right whale, the loss of even one individual could significantly impact the population. No mortality, serious injury, or injury of North Atlantic right whales as a result of the project is expected or authorized. Any disturbance to North Atlantic right whales due to Dominion Energy's activities is expected to result in temporary avoidance of the immediate area of construction. As no injury, serious injury, or mortality is expected or authorized, and Level B harassment of North Atlantic right whales will be reduced to the level of least practicable adverse impact through use of mitigation measures, the authorized number of takes of North Atlantic right whales would not exacerbate or compound the effects of the ongoing UME.
As described in the general
Overall, NMFS expects that any behavioral harassment of North Atlantic right whales incidental to the specified activities would not result in changes to their migration patterns or foraging success, as only temporary avoidance of an area during construction is expected to occur. As described previously, North Atlantic right whales migrating through the Project Area are not expected to remain in this habitat for extensive durations, and any temporarily displaced animals would be able to return to or continue to travel through and opportunistically forage in these areas once activities have ceased.
Although acoustic masking may occur in the vicinity of the foundation installation activities, based on the acoustic characteristics of noise associated with pile driving (
As described in the Potential Effects to Marine Mammals and Their Habitat section of the proposed rule (88 FR 28656, May 4, 2023), the distance of the receiver to the source influences the severity of response with greater distances typically eliciting less severe responses. NMFS recognizes North Atlantic right whales migrating could be pregnant females (in the fall) and cows with older calves (in spring) and that these animals may slightly alter their migration course in response to any foundation pile driving; however, as described in the Potential Effects to Marine Mammals and Their Habitat section of the proposed rule (88 FR 28656, May 4, 2023), we anticipate that course diversion would be of small magnitude. Hence, while some avoidance of the pile-driving activities may occur, we anticipate any avoidance behavior of migratory North Atlantic right whales would be similar to that of gray whales (Tyack
North Atlantic right whale presence in the Project Area is year-round. However, abundance during summer months is lower compared to the winter months with spring and fall serving as “shoulder seasons” wherein abundance waxes (fall) or wanes (spring). Given this year-round habitat usage, in recognition that where and when whales may actually occur during project activities is unknown as it depends on the annual migratory behaviors, NMFS is requiring a suite of mitigation measures designed to reduce impacts to North Atlantic right whales to the maximum extent practicable. These mitigation measures (
As described in the Description of Marine Mammals in the Specified Geographic Region section, Dominion Energy would be constructed within the North Atlantic right whale migratory corridor BIA, which represent areas and months within which a substantial portion of a species or population is known to migrate. The Lease Area is relatively small compared with the migratory BIA area (approximately 456.5 km
The most significant measure to minimize impacts to individual North Atlantic right whales is the seasonal moratorium on all foundation installation activities from November 1st through April 30th when North Atlantic right whale abundance in the Project Area is expected to be highest. NMFS also expects this measure to greatly reduce the potential for mother-calf pairs to be exposed to impact pile driving noise above the Level B harassment threshold during their annual spring migration through the Project Area from calving grounds to primary foraging grounds (
Foundation pile driving may only begin in the absence of North Atlantic right whales (based on visual and passive acoustic monitoring). If foundation pile driving has commenced, NMFS anticipates North Atlantic right whales would avoid the area, utilizing nearby waters to carry on pre-exposure behaviors. However, foundation installation activities must be shut down if a North Atlantic right whale is sighted and acoustically detected at any distance, unless a shutdown is not feasible due to risk of injury or loss of life. Shutdown may occur anywhere if North Atlantic right whales are seen within or beyond the Level B harassment zone, further minimizing the duration and intensity of exposure. NMFS anticipates that if North Atlantic right whales go undetected and they are exposed to foundation installation noise, it is unlikely a North Atlantic right whale would approach the sound source locations to the degree that they would purposely expose themselves to very high noise levels. This is because typical observed whale behavior demonstrates likely avoidance of harassing levels of sound where possible (Richardson
The clearance and shutdown measures are most effective when detection efficacy is maximized, as the measures are triggered by a sighting or acoustic detection. To maximize detection efficacy, NMFS requires the combination of PAM and visual observers. NMFS is requiring communication protocols with other project vessels, and other heightened awareness efforts (
Additionally, Dominion Energy anticipates a need to undertake a dual vibratory and impact pile driving approach for foundation piles to avoid risks associated with pile run due to softer sedimentation in the Project Area. While Dominion Energy expects that up to 70 percent of their piles may necessitate this joint approach (approximately 123 foundation piles), realistically not all piles would be at risk of pile run and would be installed, instead, by impact pile driving alone. However, as a conservative approach given uncertainty with the seabed conditions for the location of each pile, Dominion Energy assumed all foundation piles would undertake this approach. Furthermore, Dominion Energy has already stated that no concurrent installation of foundation piles is planned to occur, no concurrent vibratory and impact driving is expected to occur either as a 1.2-hour gap between the end vibratory driving to the start of impact pile driving (to allow for the moving and set-up of equipment) would treat each installation approach as a separate event and would not overlap.
Finally, for HRG surveys, the maximum distance to the Level B harassment threshold is 100 m. The estimated take, by Level B harassment only, associated with HRG surveys conservatively accounts for the maximum number of North Atlantic right whale exposures that may occur when HRG acoustic sources are active. However, because of the short maximum distance to the Level B harassment threshold isopleth (100 m via the GeoMarine Dual 400 Sparker 800 J), the requirement that vessels maintain a distance of 500 m from any North Atlantic right whales, the fact that whales are unlikely to remain in close proximity to an HRG survey vessel for any length of time, and that the acoustic source would be shut down if a North Atlantic right whale is observed within 500 m of the source, any exposure to noise levels above the harassment threshold (if any) would be very brief. To further minimize exposures, ramp-up of boomers, sparkers, and CHIRPs (if applicable) must be delayed during the clearance period if PSOs detect a North Atlantic right whale (or any other ESA-listed species) within 500 m of the acoustic source. With implementation of the mitigation requirements, take by Level A harassment is not anticipated and, therefore, not authorized. Potential impacts associated with Level B harassment would include low-level, temporary behavioral modifications, most likely in the form of avoidance behavior. Given the high level of precautions taken to minimize both the number and intensity of Level B harassment on North Atlantic right whales, it is unlikely that the anticipated low-level exposures would lead to reduced reproductive success or survival.
As described above, no serious injury or mortality, or Level A harassment, of North Atlantic right whale is anticipated or authorized. Extensive North Atlantic right whale-specific mitigation measures (beyond the robust suite required for all species) are expected to further minimize the number and severity of takes by Level B harassment. Given the documented habitat use within the area, the majority of the individuals predicted taken (including no more than 17 instances of take, by Level B harassment only, over the course of the 5-year rule, with an annual maximum of no more than 7) would be impacted on a maximum of 2 days in a year as North Atlantic right whales utilize this area for migration and would be transiting rather than residing in the area for extended periods of time; and, further, any impacts to North Atlantic right whales are expected to be in the form of lower-level behavioral disturbance. Given the magnitude and severity of the impacts discussed above, and in consideration of the required mitigation and other information presented, Dominion
The fin whale is listed as Endangered under the ESA, and the western North Atlantic stock is considered both Depleted and Strategic under the MMPA. No UME has been designated for this species or stock. No serious injury or mortality is anticipated or authorized for this species.
The rule authorizes up to 215 takes, by harassment only, over the 5-year effective period of the rule. The maximum annual allowable take by Level A harassment and Level B harassment, would be 4 and 113, respectively (combined, this annual take (n=117) equates to approximately 1.72 percent of the stock abundance, if each take were considered to be of a different individual), with far lower numbers than that expected in the years without foundation installation (
Level B harassment is expected to be in the form of behavioral disturbance, primarily resulting in avoidance of the Project Area where foundation installation is occurring, and some low-level TTS and masking that may limit the detection of acoustic cues for relatively brief periods of time. Any potential PTS would be minor (limited to a few dB) and any TTS would be of short duration and concentrated at half or one octave above the frequency band of pile-driving noise (most sound is below 2 kHz) which does not include the full predicted hearing range of fin whales.
Fin whales are present in the waters off of Virginia year-round and are one of the most frequently observed large whales and cetaceans in continental shelf waters, principally from Cape Hatteras in the Mid-Atlantic northward to Nova Scotia, Canada (Sergeant, 1977; Sutcliffe and Brodie, 1977; CETAP, 1982; Hain
Given the documented habitat use within the area, some of the individuals taken would likely be exposed on multiple days. However, as described the Project Area does not include areas where fin whales are known to concentrate for feeding or reproductive behaviors and the predicted takes are expected to be in the form of lower-level impacts. Given the magnitude and severity of the impacts discussed above (including no more than 215 takes by harassment only over the course of the 5-year rule, and a maximum annual allowable take by Level A harassment and Level B harassment, of 4 and 113, respectively), and in consideration of the required mitigation and other information presented, Dominion Energy's activities are not expected to result in impacts on the reproduction or survival of any individuals, much less affect annual rates of recruitment or survival. For these reasons, we have determined that the take by harassment anticipated and authorized will have a negligible impact on the western North Atlantic stock of fin whales.
The West Indies DPS of humpback whales is not listed as threatened or endangered under the ESA, but the Gulf of Maine stock, which includes individuals from the West Indies DPS, is considered Strategic under the MMPA. However, as described in the Description of Marine Mammals in the Specified Geographic Region section of this preamble, humpback whales along the Atlantic Coast have been experiencing an active UME as elevated humpback whale mortalities have occurred along the Atlantic coast from Maine through Florida since January 2016. Of the cases examined, approximately 40 percent had evidence of human interaction (vessel strike or entanglement). The UME does not yet provide cause for concern regarding population-level impacts and take from vessel strike and entanglement is not authorized in this rulemaking. Despite the UME, the relevant population of humpback whales (the West Indies breeding population, or DPS of which the Gulf of Maine stock is a part) remains stable at approximately 12,000 individuals.
The rule authorizes up to 250 takes by harassment only over the 5-year period. The maximum annual allowable take by Level A harassment and Level B harassment, is four and 130, respectively (combined, this maximum annual take (n=134) equates to approximately 9.6 percent of the stock abundance, if each take were considered to be of a different individual), with far lower numbers than that expected in the years without foundation installation (
Among the activities analyzed, pile driving is likely to result in the highest number of Level A harassment annual takes (four) of humpback whales. The maximum number of annual take authorized, by Level B harassment, is highest for pile driving (n=104; WTGs plus OSS pin piles).
As described in the Description of Marine Mammals in the Specified Geographic Region section, Humpback whales are known to occur regularly throughout the Mid-Atlantic Bight, including Virginia waters, with strong seasonality where peak occurrences occur April to June (Barco
In the western North Atlantic, humpback whales feed during spring, summer, and fall over a geographic range encompassing the eastern coast of the U.S. Feeding is generally considered to be focused in areas north of the Project Area, including a feeding BIA in the Gulf of Maine/Stellwagen Bank/Great South Channel but has been documented farther south and off the coast of Virginia. When foraging, humpback whales tend to remain in the area for extended durations to capitalize on the food sources.
Assuming humpback whales who are feeding in waters within or surrounding the Project Area behave similarly, we expect that the predicted instances of disturbance could be comprised of some individuals that may be exposed on multiple days if they are utilizing the area as foraging habitat. Also similar to other baleen whales, if migrating, such individuals would likely be exposed to
For all the reasons described in the
Given the magnitude and severity of the impacts discussed above (including no more than 250 takes over the course of the 5-year rule, and a maximum annual allowable take by Level A harassment and Level B harassment, of four and 130, respectively), and in consideration of the required mitigation measures and other information presented, Dominion Energy's activities are not expected to result in impacts on the reproduction or survival of any individuals, much less affect annual rates of recruitment or survival. For these reasons, we have determined that the take by harassment anticipated and authorized will have a negligible impact on the Gulf of Maine stock of humpback whales.
Minke whales are not listed under the ESA, and the Canadian East Coast stock is neither considered Depleted nor strategic under the MMPA. There are no known areas of specific biological importance in or adjacent to the Project Area. As described in the Description of Marine Mammals in the Specified Geographic Region section, a UME has been designated for this species but is pending closure. No serious injury or mortality is anticipated or authorized for this species.
The rule authorizes up to 131 takes, by harassment only, over the 5-year period. The maximum annual allowable take by Level A harassment and Level B harassment, would be eight and 56, respectively (combined, this annual take (n=64) equates to approximately 0.29 percent of the stock abundance, if each take were considered to be of a different individual), with far lower numbers than that expected in the years without foundation installation (
As described in the Description of Marine Mammals in the Specified Geographic Region section, there is a UME for Minke whales, along the Atlantic coast from Maine through South Carolina, with highest number of deaths in Massachusetts, Maine, and New York, and preliminary findings in several of the whales have shown evidence of human interactions or infectious diseases. However, we note that the population abundance is greater than 21,000 and the take authorized through this action is not expected to exacerbate the UME in any way. Furthermore, this UME has been declared non-active and is pending closure.
We anticipate the impacts of this harassment to follow those described in the general
Given the magnitude and severity of the impacts discussed above (including no more than 131 takes of the course of the 5-year rule, and a maximum annual allowable take by Level A harassment and Level B harassment, of 8 and 56, respectively), and in consideration of the required mitigation and other information presented, Dominion Energy's activities are not expected to result in impacts on the reproduction or survival of any individuals, much less affect annual rates of recruitment or survival. For these reasons, we have determined that the take by harassment anticipated and authorized will have a negligible impact on the Canadian Eastern Coastal stock of minke whales.
Sei whales are listed as Endangered under the ESA, and the Nova Scotia stock is considered both Depleted and Strategic under the MMPA. There are no known areas of specific biological importance in or adjacent to the Project Area and no UME has been designated for this species or stock. No serious injury or mortality is anticipated or authorized for this species.
The rule authorizes up to 10 takes, by harassment only, over the 5-year period. The maximum annual allowable take by Level A harassment and Level B harassment, would be one and three, respectively (combined, this annual take (n=4) equates to approximately 0.06 percent of the stock abundance if each take were considered to be of a different individual). As described in the Description of Marine Mammals in the Area of Specified Activities section of the proposed rule, most of the sei whale distribution is concentrated in Canadian waters and seasonally in northerly U.S. waters, though they are uncommonly observed in the waters off of Virginia. Because sei whales are migratory and their known feeding areas are east and north of the Project Area (
With respect to the severity of those individual takes by behavioral Level B harassment, we would anticipate impacts to be limited to low-level, temporary behavioral responses with avoidance and potential masking impacts in the vicinity of the turbine installation to be the most likely type of response. Any potential PTS and TTS would likely be concentrated at half or one octave above the frequency band of pile-driving noise (most sound is below 2 kHz) which does not include the full predicted hearing range of sei whales. Moreover, any TTS would be of a small degree. Any avoidance of the Project Area due to the Project's activities would be expected to be temporary.
Given the magnitude and severity of the impacts discussed above (including no more than ten takes of the course of the 5-year rule, and a maximum annual allowable take by Level A harassment and Level B harassment, of one and three, respectively), and in consideration of the required mitigation and other information presented, Dominion Energy's activities are not expected to result in impacts on the reproduction or survival of any
In this section, we include information here that applies to all of the odontocete species and stocks addressed below. Odontocetes include dolphins, porpoises, and all other whales possessing teeth, and we further divide them into the following subsections: sperm whales, dolphins and small whales, and harbor porpoises. These sub-sections include more specific information, as well as conclusions for each stock represented.
All of the takes of odontocetes authorized incidental to Dominion Energy's specified activities are by pile driving and HRG surveys. No serious injury or mortality is anticipated or authorized. We anticipate that, given ranges of individuals (
As described earlier, Level B harassment may include direct disruptions in behavioral patterns (
Any masking or TTS effects are anticipated to be of low-severity. First, the frequency range of pile driving, the most impactful activity to be conducted in terms of response severity, falls within a portion of the frequency range of most odontocete vocalizations. However, odontocete vocalizations span a much wider range than the low frequency construction activities planned for the project. As described above, recent studies suggest odontocetes have a mechanism to self-mitigate (
Furthermore, odontocete echolocation occurs predominantly at frequencies significantly higher than low frequency construction activities. Therefore, there is little likelihood that threshold shift would interfere with feeding behaviors. For HRG surveys, the sources operate at higher frequencies than foundation installation activities. However, sounds from these sources attenuate very quickly in the water column, as described above. Therefore, any potential for PTS and TTS and masking is very limited. Further, odontocetes (
The waters off the coast of Virginia are used by several odontocete species. However, none except the sperm whale are listed under the ESA, and there are no known habitats of particular importance. In general, odontocete habitat ranges are far-reaching along the Atlantic coast of the U.S. and the waters off of Virginia, including the Project Area, do not contain any particularly unique odontocete habitat features.
Sperm whales are listed as endangered under the ESA, and the North Atlantic stock is considered both Depleted and Strategic under the MMPA. The North Atlantic stock spans the East Coast out into oceanic waters well beyond the U.S. exclusive economic zone. Although listed as endangered, the primary threat faced by the sperm whale across its range (
The rule authorizes up to six takes, by Level B harassment only over the 5-year period. The maximum annual allowable take by Level B harassment, is three, which equates to approximately 0.07 percent of the stock abundance, if each take were considered to be of a different individual, with no take expected in the years without foundation installation (
If sperm whales are present in the Project Area during any Project activities, they will likely be only transient visitors and not engaging in any significant behaviors. Further, the potential for TTS is low for reasons described in the general
Given the magnitude and severity of the impacts discussed above (including no more than six takes, by Level B harassment only, over the course of the 5-year rule, and a maximum annual allowable take of three), and in consideration of the required mitigation and other information presented, Dominion Energy's activities are not expected to result in impacts on the reproduction or survival of any individuals, much less affect annual rates of recruitment or survival. For these reasons, we have determined that the take by Level B harassment anticipated and authorized will have a negligible impact on the North Atlantic stock of sperm whales.
The 12 species and 13 stocks included in this group (which are indicated in Table 2 in the
The 11 delphinid species (constituting 12 stocks) with takes authorized for the Project are Atlantic spotted dolphin, Atlantic white-sided dolphin, bottlenose dolphin, Clymene dolphin, common dolphin, false killer whale, melon-headed whale, long-finned pilot whale, short-finned pilot whale, pantropical spotted dolphin, and Risso's dolphin. The rule would allow for the total authorization of 8 to 26,764 takes (depending on species) by Level B harassment only, over the 5-year period. The maximum annual allowable take for these species by Level B harassment, would range from 4 (false killer whale) to 7,360 (both Atlantic spotted dolphin and common dolphin). Overall, this annual take equates to approximately 0.04 (Atlantic white-sided dolphin) to 18.44 (Atlantic spotted dolphin) percent of the stock abundance (if each take were considered to be of a different individual, which is not likely the case) depending on the species, with far lower numbers than that expected in the years without foundation installation (
Take has also been authorized for a single species (of a single stock) of Family
The number of takes, likely movement patterns of the affected species, and the intensity of any Level B harassment, combined with the availability of alternate nearby foraging habitat suggests that the likely impacts would not impact the reproduction or survival of any individuals. While delphinids may be taken on several occasions, none of these species are known to have small home ranges within the Project Area or known to be particularly sensitive to anthropogenic noise. Some TTS can occur, but it would be limited to the frequency ranges of the activity and any loss of hearing sensitivity is anticipated to return to pre-exposure conditions shortly after the animals move away from the source or the source ceases.
Across these species, the maximum number of incidental takes, by Level B harassment only, authorized in any one year ranges between 1 (pygmy sperm whale) and 7,360 (for both Atlantic spotted dolphins and common dolphins). The number of takes authorized in the last 3 years of the rule is notably less and the 5-year total number of take (by Level B harassment only) authorized ranges between 2 (pygmy sperm whale) and 26,764 (Atlantic spotted dolphin). Further, though the estimated numbers of take are comparatively higher than the numbers for mysticetes, we note that for all species they are relatively low relative to the population abundance.
For the Atlantic spotted dolphin, given both the comparatively higher number of takes and the higher number of takes relative to the stock abundance, while some of the takes likely represent exposures of different individuals on 1 day a year, it is likely that some subset of the individuals exposed could be taken several times annually. For all three stocks of bottlenose dolphin (
As described above for odontocetes broadly, given the comparatively higher number of estimated takes for some species and the behavioral patterns of odontocetes, we anticipate that a fair number of these instances of take in a day represent multiple exposures of a smaller number of individuals, meaning the actual number of individuals taken is lower. Although some amount of repeated exposure to some individuals is likely given the duration of activity planned by Dominion Energy, the intensity of any Level B harassment combined with the availability of alternate nearby foraging habitat suggests that the likely impacts would not impact the reproduction or survival of any individuals.
Overall, most of the populations of all delphinid and small whale species and stocks for which we authorize take are stable (no declining population trends). For others, two stocks are labeled as strategic (
Harbor porpoises are not listed under the ESA, and the Gulf of Maine/Bay of Fundy stock is neither considered depleted or strategic under the MMPA. The stock is found predominantly in northern U.S. coastal waters (less than 150 m depth) and up into Canada's Bay of Fundy (between New Brunswick and Nova Scotia). Although the population trend is not known, there are no UMEs or other factors that cause particular concern for this stock. No mortality or non-auditory injury are anticipated or authorized for this stock.
The rule authorizes up to 143 takes, by harassment only, over the 5-year period. The maximum annual allowable take by Level A harassment and Level B harassment, would be 1 and 40, respectively (combined, this annual take (n=41) equates to approximately 0.04 percent of the stock abundance if each take were considered to be of a different individual). Given the number of takes, while many of the takes likely represent exposures of different individuals on 1 day a year, some subset of the
Regarding the severity of takes by Level B harassment, because harbor porpoises are particularly sensitive to noise, it is likely that a fair number of the responses could be of a moderate nature, particularly to pile driving. In response to pile driving, harbor porpoises are likely to avoid the area during construction, as previously demonstrated in Tougaard
With respect to PTS and TTS, the effects on an individual are likely relatively low given the frequency bands of pile driving (most energy below 2 kHz) compared to harbor porpoise hearing (150 Hz to 160 kHz peaking around 40 kHz). Specifically, TTS is unlikely to impact hearing ability in their more sensitive hearing ranges, or the frequencies in which they communicate and echolocate. We expect any PTS that may occur to be within the very low end of their hearing range where harbor porpoises are not particularly sensitive, and any PTS would be of small magnitude. As such, any PTS would not interfere with key foraging or reproductive strategies necessary for reproduction or survival.
As discussed in Hayes
Given the magnitude and severity of the impacts discussed above, and in consideration of the required mitigation and other information presented, Dominion Energy's activities are not expected to result in impacts on the reproduction or survival of any individuals, much less affect annual rates of recruitment or survival. For these reasons, we have determined that the take by harassment anticipated and authorized will have a negligible impact on the Gulf of Maine/Bay of Fundy stock of harbor porpoises.
The harbor seal and gray seal are not listed under the ESA, and neither the western North Atlantic stock of gray seal nor the western North Atlantic stock of harbor seal are considered depleted or strategic under the MMPA. There are no known areas of specific biological importance in or around the Project Area. As described in the Description of Marine Mammals in the Specified Geographic Region section, a UME has been designated for harbor seals and gray seals and is described further below. No serious injury or mortality is anticipated or authorized for this species.
For the 2 seal species, the rule authorizes up to 220 takes for each species by harassment only over the 5-year period. The maximum annual allowable take for each species by Level A harassment and Level B harassment, would be one and 83, respectively (combined, this annual take (n=84) equates to approximately 0.14 percent of the stock abundance for harbor seals and 0.31 percent of the stock abundance for gray seals, if each take were considered to be of a different individual). Though harbor seals and gray seals are considered migratory and no specific feeding areas have been designated in the area, the higher number of takes relative to the stock abundance suggests that while some of the takes likely represent exposures of different individuals on 1 day a year, it is likely that some subset of the individuals exposed could be taken several times annually.
Harbor and gray seals occur in Virginia waters most often during the fall and winter, sometimes until early spring, with harbor seal occurrences more common than gray seals (Hayes
As described in the Potential Effects to Marine Mammals and Their Habitat section in the proposed rule (88 FR 28656, May 4, 2023), construction of wind farms in Europe resulted in pinnipeds temporarily avoiding construction areas but returning within short time frames after construction was complete (Carroll
Given the low anticipated magnitude of impacts from any given exposure (
As described above, noise from pile driving is mainly low frequency and, while any PTS and TTS that does occur would fall within the lower end of pinniped hearing ranges (50 Hz to 86 kHz), PTS and TTS would not occur at frequencies around 5 kHz where
Elevated numbers of harbor seal and gray seal mortalities were first observed in July 2018 and occurred across Maine, New Hampshire, and Massachusetts until 2020. Based on tests conducted so far, the main pathogen found in the seals belonging to that UME was phocine distemper virus, although additional testing to identify other factors that may be involved in this UME are underway. Currently, the only active UME is occurring in Maine with some harbor and gray seals testing positive for highly pathogenic avian influenza (HPAI) H5N1. Although elevated strandings continue, neither UME (alone or in combination) provides cause for concern regarding population-level impacts to any of these stocks. For harbor seals, the population abundance is over 61,000 and annual mortality/serious injury (M/SI) (n=339) is well below PBR (1,729) (Hayes
Given the magnitude and severity of the impacts discussed above, and in consideration of the required mitigation and other information presented, Dominion Energy's activities are not expected to result in impacts on the reproduction or survival of any individuals, much less affect annual rates of recruitment or survival. For these reasons, we have determined that the take by harassment anticipated and authorized will have a negligible impact on harbor and gray seals.
No mortality or serious injury is anticipated to occur or authorized. As described in the analysis above, the impacts resulting from the project's activities cannot be reasonably expected to, and are not reasonably likely to, adversely affect any of the species or stocks through effects on annual rates of recruitment or survival. 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 required mitigation and monitoring measures, NMFS finds that the marine mammal take from all of Dominion Energy's specified activities combined will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the maximum number of individuals estimated to be taken in a year to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. When the predicted number of individuals to be taken is less than one-third of the species or stock abundance, the take is considered to be of small numbers. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
NMFS is authorizing incidental take by Level A harassment and/or Level B harassment of 21 species of marine mammals (with 22 managed stocks). The maximum number of instances of takes by combined Level A harassment and Level B harassment possible within any 1 year relative to the best available population abundance is less than one-third for all species and stocks potentially impacted.
For 13 stocks, less than 1 percent of the stock abundance is authorized to be annually taken by harassment; for 7 stocks, less than 10 percent of the stock abundance is authorized to be taken annually by harassment; and for 1 stock, less than 20 percent of the stock abundance is authorized to be annually take by harassment. Specific to the North Atlantic right whale, the maximum amount of take, which is by Level B harassment only, is 7, or 2.07 percent of the stock abundance, assuming that each instance of take represents a different individual. While no population estimate is available for melon-headed whales, it can be assumed that the low amount of maximum annual take authorized (n=5; by Level B harassment only) would constitute small numbers. For all species, please see Table 24 for information relating to this small numbers analysis.
Based on the analysis contained herein of the activities (including the required mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals would be taken relative to the population size of the affected species or stocks.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7(a)(2) of the ESA of 1973 (16 U.S.C. 1531
There are four marine mammal species under NMFS jurisdiction that are listed as endangered or threatened under the ESA that may be taken, by harassment, incidental to construction of the CVOW-C Project: the North Atlantic right, sei, fin, and sperm whale. The Permit and Conservation Division requested initiation of section 7 consultation on April 4, 2023 with GARFO on the issuance of the CVOW-C regulations and the associated 5-year LOA under section 101(a)(5)(A) of the MMPA.
NMFS issued a Biological Opinion on September 19, 2023 concluding that the promulgation of the rule and issuance of LOAs thereunder is not likely to jeopardize the continued existence of threatened and endangered species under NMFS' jurisdiction and is not likely to result in the destruction or adverse modification of designated or proposed critical habitat. The Biological Opinion is available at
Dominion Energy is required to abide by the promulgated regulations, as well as the reasonable and prudent measures and terms and conditions of the
To comply with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
The Office of Management and Budget has determined that this rule is not significant for purposes of Executive Order 12866.
Pursuant to the Regulatory Flexibility Act (RFA; 5 U.S.C. 601
Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection of information displays a currently valid Office of Management and Budget (OMB) control number. These requirements have been approved by OMB under control number 0648-0151 and include applications for regulations, subsequent LOA, and reports. Send comments regarding any aspect of this data collection, including suggestions for reducing the burden, to NMFS.
The Coastal Zone Management Act requires that any applicant for a required Federal license or permit to conduct an activity, within the coastal zone or within the geographic location descriptions (
The Assistant Administrator for Fisheries has determined that there is a sufficient basis under the Administrative Procedure Act (APA) to waive the 30-day delay in the effective date of the measures contained in the final rule. Section 553 of the APA provides that the required publication or service of a substantive rule shall be made not less than 30 days before its effective date with certain exceptions, including (1) for a substantive rule that relieves a restriction or (2) when the agency finds and provides good cause for foregoing delayed effectiveness (5 U.S.C 553(d)(1), (d)(3)). Here, the issuance of regulations under section 101(a)(5)(A) of the MMPA is a substantive action that relieves the statutory prohibition on the taking of marine mammals, specifically, the incidental taking of marine mammals associated with Dominion Energy's specified activities during the construction of the CVOW-C Project offshore of Virginia. Until the effective date of these regulations, Dominion Energy is prohibited from taking marine mammals incidental to the Project.
In addition, good cause exists for waiving the delay in effective date. Dominion Energy plans to conduct HRG surveys in early February 2024. Delays in this activity will impact construction activity sequencing and potentially vessel and other service procurement and availability. Moreover, offshore wind projects, such as the CVOW-C Project, that are developed to generate renewable energy have great societal and economic importance, and delays in completing the project are contrary to the public interest.
Finally, Dominion Energy has informed NMFS that it does not require 30 days to prepare for implementation of the regulations and requests that this final rule take effect on or before February 5, 2024. For these reasons, the subject regulations will be made immediately effective upon publication.
Administrative practice and procedure, Endangered and threatened species, Fish, Fisheries, Marine mammals, Penalties, Reporting and recordkeeping requirements, Wildlife.
For reasons set forth in the preamble, NMFS amends 50 CFR part 217 to read as follows:
16 U.S.C. 1361
(a) Regulations in this subpart apply to activities associated with the Coastal Virginia Offshore Wind Commercial Project (hereafter referred to as the “Project”) by the Virginia Electric and Power Company, doing business as Dominion Energy Virginia (hereafter referred to as “LOA Holder”), and those persons it authorizes or funds to conduct activities on its behalf in the area outlined in paragraph (b) of this section. Requirements imposed on the LOA Holder must be implemented by those persons it authorizes or funds to conduct activities on its behalf.
(b) The specified geographical region is the Mid-Atlantic Bight, which includes, but is not limited to, the Bureau of Ocean Energy Management (BOEM) Lease Area Outer Continental Shelf (OCS)-A 0483 Commercial Lease of Submerged Lands for Renewable Energy Development, one export cable route, and one sea-to-shore transition point located at the State Military Reservation in Virginia Beach, Virginia.
(c) The specified activities are vibratory and impact pile driving of wind turbine generator (WTGs) and offshore substation (OSSs) foundations; vibratory pile driving (install and subsequently removal) of cofferdams; impact pile driving (install and subsequently removal) of goal posts; fishery and ecological monitoring surveys; placement of scour protection; trenching, laying, and burial activities associated with the installation of the export cable from OSSs to shore-based converter stations and inter-array cables between turbines; high-resolution geophysical (HRG) site characterization surveys; vessel transit within the specified geographical region to transport crew, supplies, and materials; and WTG operation.
The regulations in this subpart are effective from February 5, 2024, through February 4, 2029.
Under a LOA, issued pursuant to §§ 216.106 and 217.296, LOA Holder and those persons it authorizes or funds to conduct activities on its behalf may incidentally, but not intentionally, take marine mammals within BOEM Lease Area OCS-A 0483 Commercial Lease of Submerged Lands for Renewable Energy Development, along export cable routes, and at the sea-to-shore transition point located at the State Military Reservation in Virginia Beach, Virginia in the following ways, provided LOA Holder is in complete compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA:
(a) By Level B harassment associated with the acoustic disturbance of marine mammals by impact and vibratory pile driving (WTG and OSS foundation installation), impact pile driving of goal posts, vibratory pile driving of temporary cofferdams, and HRG site characterization surveys; and
(b) By Level A harassment associated with the acoustic disturbance of marine mammals by impact pile driving WTG and OSS foundations.
(c) Take by mortality or serious injury of any marine mammal species is not authorized.
(d) The incidental take of marine mammals by the activities listed in paragraphs (a) and (b) of this section is limited to the following stocks:
Except for the takings described in § 217.292 and authorized by an LOA issued under §§ 217.296 or 217.297, it is unlawful for any person to do any of the following in connection with the activities described in this subpart:
(a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or an LOA issued under §§ 217.296 or 217.297;
(b) Take any marine mammal not specified in § 217.292(d);
(c) Take any marine mammal specified in the LOA in any manner other than as specified in the LOA; or
(d) Take any marine mammal specified in § 217.292(d), after NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammals.
When conducting the activities identified in § 217.290(c) within the area described in § 217.290(b), LOA Holder must implement the mitigation measures contained in this section and any LOA issued under §§ 217.296 or 217.297. These mitigation measures include, but are not limited to:
(a)
(1) A copy of any issued LOA must be in the possession of LOA Holder and its designees, all vessel operators, visual protected species observers (PSOs), passive acoustic monitoring (PAM) operators, pile driver operators, and any other relevant designees operating under the authority of the issued LOA;
(2) LOA Holder must conduct training for construction, survey, and vessel personnel and the marine mammal monitoring team (PSO and PAM operators) prior to the start of all in-water construction activities in order to explain responsibilities, communication procedures, marine mammal detection and identification, mitigation, monitoring, and reporting requirements, safety and operational procedures, and authorities of the marine mammal monitoring team(s). This training must be repeated for new personnel who join the work during the project. A description of the training program must be provided to NMFS at least 60 days prior to the initial training before in-water activities begin. Confirmation of all required training must be documented on a training course log sheet and reported to NMFS Office of Protected Resources prior to initiating project activities;
(3) Prior to and when conducting any in-water construction activities and vessel operations, LOA Holder personnel and contractors (
(4) Any marine mammal observed by project personnel must be immediately communicated to any on-duty PSOs, PAM operator(s), and all vessel captains. Any large whale observation or acoustic detection by PSOs or PAM operators must be conveyed to all vessel captains;
(5) For North Atlantic right whales, any visual detection by a PSO or acoustic detection by PAM operators at any distance (where applicable for the specified activities) must trigger a delay to the commencement of pile driving and HRG surveys;
(6) In the event that a large whale is sighted or acoustically detected that cannot be confirmed as a non-North Atlantic right whale, it must be treated as if it were a North Atlantic right whale for purposes of mitigation;
(7) Any PSO has the authority to call for a delay or shutdown of project activities. If a delay to commencing an activity is called for by a PSO, LOA Holder must take the required mitigative action. If a shutdown of an activity is called for by a PSO, LOA Holder must take the required mitigative action unless shutdown would result in imminent risk of injury or loss of life to an individual, pile refusal, or pile instability. Any disagreements between the Lead PSO and the activity operator or between the Lead PSO and another PSO regarding delays or shutdowns must only be discussed after the mitigative action has occurred;
(8) Any marine mammals observed within a clearance or shutdown zone must be allowed to remain in the area (
(9) If an individual from a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized take number has been met, is observed entering or within the relevant clearance zone prior to beginning a specified activity, the activity must be delayed. If an activity is ongoing and individual from a species for which authorization has not been granted, or a species for which authorization has been granted but the authorized take number has been met, is observed entering or within the relevant shutdown zone, the activity must be shut down (
(10) For in-water construction heavy machinery activities listed in § 217.290(c), if a marine mammal is on a path towards or comes within 10 meters (m; 32.8 feet (ft)) of equipment, LOA Holder must cease operations until the marine mammal has moved more than 10 m on a path away from the activity to avoid direct interaction with equipment;
(11) All vessels must be equipped with a properly installed, operational Automatic Identification System (AIS) device and LOA Holder must report all Maritime Mobile Service Identify (MMSI) numbers to NMFS Office of Protected Resources;
(12) By accepting the LOA, LOA Holder consents to on-site observation and inspections by Federal agency personnel (including NOAA personnel) during activities described in this subpart, for the purposes of evaluating the implementation and effectiveness of measures contained within the LOA and this subpart; and
(13) It is prohibited to assault, harm, harass (including sexually harass), oppose, impede, intimidate, impair, or in any way influence or interfere with a PSO, PAM Operator, or vessel crew member acting as an observer, or attempt the same. This prohibition includes, but is not limited to, any action that interferes with an observer's responsibilities, or that creates an intimidating, hostile, or offensive environment. Personnel may report any violations to the NMFS Office of Law Enforcement.
(b)
(1) Prior to the start of the Project's activities involving vessels, all vessel personnel must receive a protected species training that covers, at a minimum, identification of marine mammals that have the potential to occur where vessels would be operating; detection and observation methods in both good weather conditions (
(2) All vessel operators, operating at any speed and regardless of their vessel's size, must slow down, stop their vessel, or alter course to avoid striking any marine mammal;
(3) All vessels, regardless of their size, operating at any speed must have a dedicated visual observer aboard and on duty at all times whose sole responsibility (
(4) At the onset of transiting and continuously thereafter, vessel operators must monitor the U.S. Coast Guard VHF Channel 16, over which North Atlantic right whale sightings are broadcasted. At the onset of transiting and at least once every 4 hours, vessel operators and/or trained crew member(s) must also monitor the project's Situational Awareness System (if applicable), WhaleAlert, and relevant NOAA information systems such as the Right Whale Sighting Advisory System (RWSAS) for the presence of North Atlantic right whales;
(5) Any large whale sighting by any project-personnel, including any LOA Holder staff, contractors, or vessel crew, must be immediately communicated to all project-associated vessel operators, PSOs, and PAM operators for situational awareness. Conversely, any large whale observation or detection via a sighting network (
(6) All vessel operators must abide by existing applicable vessel speed regulations (
(7) All vessel operators, regardless of their vessel's size, must immediately reduce vessel speed to 10 kn or less for at least 24 hours when a North Atlantic right whale is sighted at any distance by any project-related personnel or acoustically detected by any project-related PAM system. Each subsequent observation or acoustic detection in the Project area shall trigger an additional 24-hour period. If a North Atlantic right whale is reported by project personnel or via any of the monitoring systems (refer back to paragraph (b)(4) of this section) that vessel must operate at 10 kn (11.5 mph) or less for 24 hours following the reported detection;
(8) All vessels, regardless of size, must immediately reduce speed to 10 kn or less when any large whale, mother/calf pairs, or large assemblages of cetaceans are observed within 500 m (0.31 mi) of an underway vessel;
(9) If vessel(s) are traveling at speeds greater than 10 kn (
(10) All vessels must maintain a minimum separation distance of 500 m from North Atlantic right whales. If underway, all vessels must steer a course away from any sighted North Atlantic right whale at 10 kn or less such that the 500-m minimum separation distance requirement is not violated. If a North Atlantic right whale is sighted within 500 m of an underway vessel, that vessel operator must reduce speed and shift the engine to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 500 m. If a whale is observed but cannot be confirmed as a species other than a North Atlantic right whale, the vessel operator must assume that it is a North Atlantic right whale and take the vessel strike avoidance measures described in this paragraph (b)(7) of this section;
(11) All vessels must maintain a minimum separation distance of 100 m (328 ft) from sperm whales and non-North Atlantic right whale baleen whales. If one of these species is sighted within 100 m of a transiting vessel, the vessel must shift the engine(s) to neutral. Engines must not be engaged until the whale has moved outside of the vessel's path and beyond 100 m;
(12) All vessels must maintain a minimum separation distance of 50 m (164 ft) from all delphinoid cetaceans and pinnipeds with an exception made for those that approach the vessel (
(13) When a marine mammal(s) is sighted while the vessel(s) is transiting, the vessel must take action as necessary to avoid violating the relevant separation distances (
(14) All vessels underway must not divert or alter course to approach any marine mammal;
(15) Vessel operators must check, daily, for information regarding the establishment of mandatory or voluntary vessel strike avoidance areas (
(16) LOA Holder must submit a North Atlantic Right Whale Vessel Strike Avoidance Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of vessel activity. The plan must provide details on the vessel-based observer and PAM protocols for transiting vessels in the vessel transit corridor. If a plan is not submitted and approved by NMFS prior to vessel operations, all project vessels must travel at speeds of 10 kn (11.5 mph) or less. LOA Holder must comply with any approved North Atlantic Right Whale Vessel Strike Avoidance Plan.
(c)
(1) Vibratory and impact pile driving of foundation piles must not occur November 1st through April 30th, annually;
(2) Monopiles must be no larger than 9.5-m in diameter, representing the larger end of the tapered 9.5/7.5-m monopile design. Pin piles must be no larger than 2.8-m in diameter. During all monopile and pin pile installation, the minimum amount of hammer energy necessary to effectively and safely install and maintain the integrity of the piles must be used. Hammer energies must not exceed 4,000 kilojoules (kJ) for monopile installations and 3,000 kJ for pin pile installation. No more than two monopile foundation or two pin piles for jacket foundations may be installed per day;
(3) LOA Holder may initiate foundation pile driving (
(4) LOA Holder must only perform foundation pile driving during daylight hours, defined as no later than 1.5 hours prior to civil sunset and no earlier than 1 hour after civil sunrise, and may only continue into darkness if stopping operations represents a risk to human health, safety, and/or pile stability and an Alternative Monitoring Plan has been approved by NMFS. No new pile driving may begin when pile driving continues into darkness;
(5) LOA Holder must utilize a soft-start protocol at the beginning of foundation installation for each impact pile driving event. No soft-start for vibratory pile driving is necessary;
(6) Soft-start must occur at the beginning of impact driving and at any time following a cessation of impact pile driving of 30 minutes or longer;
(7) LOA Holder must establish clearance and shutdown zones, which must be measured using the radial distance around the pile being driven. Clearance monitoring must begin 60 minutes immediately prior to initiation of pile driving. If a marine mammal is detected within or about to enter the applicable clearance zones 30 minutes prior to the beginning of pile driving (including soft start if impact pile driving) or during pile driving, pile driving must be delayed or shutdown until the animal has been visually observed exiting the clearance zone or until a specific time period has elapsed with no further sightings. The specific time periods are 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species;
(8) For North Atlantic right whales, any visual observation or acoustic detection must trigger a delay to the commencement of pile driving. The clearance zone may only be declared clear if no North Atlantic right whale acoustic or visual detections have occurred within the clearance zone during the 60-minute monitoring period;
(9) LOA Holder must deploy at least two functional noise abatement systems that reduce noise levels to the modeled harassment isopleths, assuming 10-dB attenuation, during all foundation pile driving:
(i) At least a double bubble curtain must be used;
(ii) Any bubble curtain(s) must distribute air bubbles using an air flow rate of at least 0.5 m
(iii) The lowest bubble ring must be in contact with the seafloor for the full circumference of the ring, and the weights attached to the bottom ring must ensure 100-percent seafloor contact;
(iv) No parts of the ring or other objects may prevent full seafloor contact with a bubble curtain ring;
(v) Construction contractors must train personnel in the proper balancing of airflow to the bubble curtain ring. LOA Holder must provide NMFS Office of Protected Resources with a bubble curtain performance test and maintenance report to review within 72 hours after each pile using a bubble curtain is installed. Additionally, a full maintenance check (
(vi) Corrections to the bubble ring(s) to meet the performance standards in this paragraph (c)(9) must occur prior to pile driving of foundation piles.
(vii) For any noise mitigation device in addition to the bubble curtain, LOA Holder must inspect and carry out appropriate maintenance on the system and ensure the system is functioning properly prior to every pile driving event.
(10) LOA Holder must utilize NMFS-approved PAM systems, as described in paragraph (c)(17) of this section. The PAM system components (
(11) LOA Holder must utilize PSO(s) and PAM operator(s), as described in § 217.295(c). At least three on-duty PSOs must be on the pile driving platform. Additionally, two dedicated-PSO vessels must be used at least 60 minutes before, during, and 30 minutes after all pile driving, and each dedicated-PSO vessel must have at least three PSOs on duty during these time periods. LOA Holder may request NMFS approval to use alternative technology
(12) If a marine mammal is detected (visually or acoustically) entering or within the respective shutdown zone after pile driving has begun, the PSO must call for a shutdown of pile driving and LOA Holder must stop pile driving immediately, unless shutdown is not
(13) A visual observation at any distance from a PSO or acoustic detection of a North Atlantic right whale triggers shutdown requirements under paragraph (c)(12) of this section. If pile driving has been shut down due to the presence of a North Atlantic right whale, pile driving may not restart until the North Atlantic right whale has neither been visually or acoustically detected for 30 minutes;
(14) If pile driving has been shut down due to the presence of a marine mammal other than a North Atlantic right whale, pile driving must not restart until either the marine mammal(s) has voluntarily left the specific clearance zones and has been visually or acoustically confirmed beyond that clearance zone, or, when specific time periods have elapsed with no further sightings or acoustic detections have occurred. The specific time periods are 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other marine mammal species. In cases where these criteria are not met, pile driving may restart only if necessary to maintain pile stability at which time LOA Holder must use the lowest hammer energy practicable to maintain stability;
(15) LOA Holder must conduct sound field verification (SFV) measurements during pile driving activities associated with the installation of, at minimum, the first three monopile foundations and for all three OSS foundations (for all 12 pin piles installed). SFV measurements must continue until at least three consecutive piles demonstrate noise levels are at or below those modeled, assuming 10 decibels (dB) of attenuation. Subsequent SFV measurements are also required should larger piles be installed or if additional monopiles are driven that may produce louder sound fields than those previously measured (
(i) Measurements must be made at a minimum of four distances from the pile(s) being driven, along a single transect, in the direction of lowest transmission loss (
(ii) The recordings must be continuous throughout the duration of all pile driving of each foundation;
(iii) The SFV measurement systems must have a sensitivity appropriate for the expected sound levels from pile driving received at the nominal ranges throughout the installation of the pile. The frequency range of SFV measurement systems must cover the range of at least 20 hertz (Hz) to 20 kilohertz (kHz). The SFV measurement systems must be designed to have omnidirectional sensitivity so that the broadband received level of all pile driving exceeds the system noise floor by at least 10 dB. The dynamic range of the SFV measurement system must be sufficient such that at each location, and the signals avoid poor signal-to-noise ratios for low amplitude signals and avoid clipping, nonlinearity, and saturation for high amplitude signals;
(iv) All hydrophones used in SFV measurements systems are required to have undergone a full system, traceable laboratory calibration conforming to International Electrotechnical Commission (IEC) 60565, or an equivalent standard procedure, from a factory or accredited source to ensure the hydrophone receives accurate sound levels, at a date not to exceed 2 years before deployment. Additional
(v) LOA Holder must be prepared with additional equipment (hydrophones, recording devices, hydrophone calibrators, cables, batteries,
(vi) LOA Holder must submit interim reports within 48 hours after each foundation is measured (see § 217.295(g) section for interim and final reporting requirements);
(vii) LOA Holder must not exceed modeled distances to NMFS marine mammal Level A harassment and Level B harassment thresholds, assuming 10-dB attenuation, for foundation installation. If any of the interim SFV measurement reports submitted indicate the modeled distances to NMFS marine mammal Level A harassment and Level B harassment thresholds assuming 10-dB attenuation, then LOA Holder must implement additional, modified, and/or alternative noise attenuation measures or operational changes that present a reasonable likelihood of reducing sound levels to the modeled distances on all subsequent foundations. LOA Holder must also increase clearance and shutdown zone sizes to those identified by NMFS until SFV measurements on at least three additional foundations demonstrate acoustic distances to harassment thresholds meet or are less than those modeled assuming 10-dB of attenuation. In this situation, LOA Holder would be required to provide a proposed monitoring plan for expanded zones (per the Biological Opinion) that would detail the proposed expanded zones and any additional monitoring and mitigation that would be implemented. If the harassment zones are expanded beyond an additional 1,500 m (0.93 mi), additional PSOs must be deployed on additional platforms, with each observer responsible for maintaining watch in no more than 180 degrees and of an area with a radius no greater than 1,500 m.
(viii) LOA Holder must optimize the sound attenuation systems (
(ix) If, after additional measurements conducted pursuant to requirements of paragraph (15)(vii) of this section, acoustic measurements indicate that ranges to isopleths corresponding to the Level A harassment and Level B harassment thresholds are less than the ranges predicted by modeling (assuming 10-dB attenuation), LOA Holder may request to NMFS Office of Protected Resources a modification of the clearance and shutdown zones. For NMFS Office of Protected Resources to consider a modification request for reduced zone sizes, LOA Holder must have conducted SFV measurements on
(x) LOA Holder must conduct SFV measurements upon commencement of turbine operations to estimate turbine operational source levels and transmission loss rates, in accordance with a NMFS-approved Foundation Installation Pile Driving SFV Plan. SFV must be conducted in the same manner as previously described in paragraph (c)(15) of this section, with appropriate adjustments to measurement distances, number of hydrophones, and hydrophone sensitivities being made, as necessary; and
(xi) LOA Holder must submit a SFV Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of foundation installation activities and abide by the Plan if approved. At minimum, the SFV Plan must describe how LOA Holder would ensure that the first three monopile foundation installation sites selected for SFV measurements are representative of the rest of the monopile installation sites such that future pile installation events are anticipated to produce similar sound levels to those piles measured. In the case that these sites/scenarios are not determined to be representative of all other pile installation sites, LOA Holder must include information in the SFV Plan on how additional sites/scenarios would be selected for SFV measurements. This SFV Plan must also describe approaches that LOA Holder could take to adjust noise attenuation systems or add systems in the case that any SFV measurements obtained demonstrate that noise levels are above those modeled (assuming 10 dB of attenuation). Furthermore, the SFV Plan must also include how operational noise would be monitored. Operational parameters (
(16) LOA Holder must submit a Foundation Installation Pile Driving Marine Mammal Monitoring Plan to NMFS Office of Protected Resources for review and approval at least 180 days prior to planned start of foundation pile driving and abide by the Plan if approved. LOA Holder must obtain both NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division's concurrence with this Plan prior to the start of any pile driving. The Plan must include, at a minimum: the final pile driving project design (
(17) LOA Holder must submit a Passive Acoustic Monitoring Plan (PAM Plan) to NMFS Office of Protected Resources for review and approval at least 180 days prior to the planned start of foundation installation activities and abide by the Plan if approved. The PAM Plan must include a description of all proposed PAM equipment, address how the proposed passive acoustic monitoring must follow standardized measurement, processing methods, reporting metrics, and metadata standards for offshore wind. The Plan must describe all proposed PAM equipment, procedures, and protocols including proof that vocalizing North Atlantic right whales will be detected within the clearance and shutdown zones. No pile installation can occur if LOA Holder's PAM Plan does not receive approval from NMFS Office of Protected Resources and NMFS Greater Atlantic Regional Fisheries Office Protected Resources Division.
(d)
(1) Installation and removal of cofferdams and goal posts must not occur during nighttime hours (defined as the hours between 1.5 hours prior to civil sunset and 1 hour after civil sunrise);
(2) LOA Holder must establish and implement clearance zones for the installation and removal of cofferdams and goal posts using visual monitoring. These zones must be measured using the radial distance from the cofferdam and goal post being installed and/or removed;
(3) LOA Holder must utilize PSO(s), as described in § 217.295(d). At least two on-duty PSOs must monitor for marine mammals at least 30 minutes before, during, and 30 minutes after vibratory and impact pile driving associated with cofferdam and casing pipe installation, respectively;
(4) If a marine mammal(s) is observed entering or is observed within the clearance zones, before vibratory or impact pile driving has begun, the activity must not commence until the animal(s) has exited the zone or a specific amount of time has elapsed since the last sighting. The specific time periods are 15 minutes for small odontocetes and pinnipeds and 30 minutes for all other marine mammal species;
(5) If a marine mammal is observed entering or within the respective shutdown zone after vibratory or impact pile driving has begun, the PSO must call for a shutdown of pile driving. LOA Holder must stop pile driving immediately unless shutdown is not practicable due to imminent risk of injury or loss of life to an individual or if there is a risk of damage to the vessel that would create a risk of injury or loss of life for individuals or if the lead engineer determines there is refusal or instability. In any of these situations, LOA Holder must document the reason(s) for not shutting down and report the information to NMFS Office of Protected Resources in the annual report (as described in § 217.295(g)). In cases where shutdown is not feasible, pile driving may restart only if necessary to maintain pile stability at which time LOA Holder must use the lowest hammer energy practicable to maintain stability;
(6) Pile driving must not restart until either the marine mammal(s) has voluntarily left the specific clearance zones and has been visually or acoustically confirmed beyond that clearance zone, or, when specific time periods have elapsed with no further sightings or acoustic detections have occurred. The specific time periods are 15 minutes for small odontocetes and pinnipeds and 30 minutes for all other marine mammal species; and
(7) LOA Holder must employ a soft-start for all impact pile driving of goal posts. Soft start requires contractors to provide an initial set of three strikes at reduced energy, followed by a 30-second waiting period, then two subsequent reduced-energy strike sets.
(e)
(1) LOA Holder must establish and implement clearance and shutdown zones for HRG surveys using visual monitoring, as described in paragraph (c) of this section;
(2) LOA Holder must utilize PSO(s), as described in § 217.295(e);
(3) LOA Holder must abide by the relevant Project Design Criteria (PDCs 4, 5, and 7) of the programmatic consultation completed by NMFS' Greater Atlantic Regional Fisheries Office on June 29, 2021 (revised September 2021), pursuant to section 7 of the Endangered Species Act (ESA). To the extent that any relevant Best Management Practices (BMPs) described in these PDCs are more stringent than the requirements herein, those BMPs supersede these requirements;
(4) SBPs (hereinafter referred to as “acoustic sources”) must be deactivated when not acquiring data or preparing to acquire data, except as necessary for testing. Acoustic sources must be used at the lowest practicable source level to meet the survey objective, when in use, and must be turned off when they are not necessary for the survey;
(5) Prior to starting the survey and after receiving confirmation from the PSOs that the clearance zone is clear of any marine mammals, LOA Holder is required to ramp-up acoustic sources to half power for 5 minutes prior to commencing full power, unless the equipment operates on a binary on/off switch (in which case ramp-up is not required). LOA Holder must also ensure visual clearance zones are fully visible (
(6) Ramp-up and activation must be delayed if a marine mammal(s) enters its respective shutdown zone. Ramp-up and activation may only be reinitiated if the animal(s) has been observed exiting its respective shutdown zone or until 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species, has elapsed with no further sightings;
(7) Prior to a ramp-up procedure starting or activating acoustic sources, the acoustic source operator (operator) must notify a designated PSO of the planned start of ramp-up as agreed upon with the Lead PSO. The notification time should not be less than 60 minutes prior to the planned ramp-up or activation in order to allow the PSOs time to monitor the clearance zone(s) for 30 minutes prior to the initiation of ramp-up or activation (pre-start clearance). During this 30-minute pre-start clearance period, the entire applicable clearance zones must be visible, except as indicated in paragraph (f)(12) of this section;
(8) Ramp-ups must be scheduled so as to minimize the time spent with the source activated;
(9) A PSO conducting pre-start clearance observations must be notified again immediately prior to reinitiating ramp-up procedures and the operator must receive confirmation from the PSO to proceed;
(10) LOA Holder must implement a 30-minute clearance period of the clearance zones immediately prior to the commencing of the survey or when there is more than a 30-minute break in survey activities or PSO monitoring. A clearance period is a period when no marine mammals are detected in the relevant zone;
(11) If a marine mammal is observed within a clearance zone during the clearance period, ramp-up or acoustic surveys may not begin until the animal(s) has been observed voluntarily exiting its respective clearance zone or until a specific time period has elapsed with no further sighting. The specific time period is 15 minutes for small odontocetes and pinnipeds, and 30 minutes for all other species;
(12) In any case when the clearance process has begun in conditions with good visibility, including via the use of night vision equipment (infrared (IR)/thermal camera), and the Lead PSO has determined that the clearance zones are clear of marine mammals, survey operations may commence (
(13) Once the survey has commenced, LOA Holder must shut down acoustic sources if a marine mammal enters a respective shutdown zone, except in cases when the shutdown zones become obscured for brief periods due to inclement weather, survey operations may continue (
(14) If an acoustic source has been shut down due to the presence of a marine mammal, the use of an acoustic source may not commence or resume until the animal(s) has been confirmed to have left the Level B harassment zone or until a full 15 minutes (for small odontocetes and seals) or 30 minutes (for all other marine mammals) have elapsed with no further sighting;
(15) LOA Holder must immediately shut down any acoustic source if a marine mammal is sighted entering or within its respective shutdown zones. If there is uncertainty regarding the identification of a marine mammal species (
(16) If an acoustic source is shut down for a period longer than 30 minutes, all clearance and ramp-up procedures must be initiated. If an acoustic source is shut down for reasons other than mitigation (
(f)
(1) Survey gear must be deployed as soon as possible once the vessel arrives on station. Gear must not be deployed if there is a risk of interaction with marine mammals. Gear may be deployed after 15 minutes of no marine mammal sightings within 1 nautical mile (nmi; 1,852 m) of the sampling station;
(2) LOA Holder and/or its cooperating institutions, contracted vessels, or commercially hired captains must implement the following “move-on” rule: If marine mammals are sighted within 1 nautical mile (nmi (1.2 mi)) of the planned location and 15 minutes before gear deployment, then LOA
(3) If a marine mammal is at risk of interacting with deployed gear, all gear must be immediately removed from the water. If marine mammals are sighted before the gear is fully removed from the water, the vessel must slow its speed and maneuver the vessel away from the animals to minimize potential interactions with the observed animal;
(4) Unless using ropeless gear, LOA Holder must maintain visual marine mammal monitoring effort during the entire period of time that gear is in the water (
(5) All fisheries monitoring gear must be fully cleaned and repaired (if damaged) before each use/deployment;
(6) LOA Holder's fixed gear must comply with the Atlantic Large Whale Take Reduction Plan regulations at 50 CFR 229.32 during fisheries monitoring surveys;
(7) Trawl tows must be limited to a maximum of a 20-minute trawl time at 3.0 kn (3.5 mph);
(8) All gear must be emptied as close to the deck/sorting area and as quickly as possible after retrieval;
(9) All fishery survey-related lines must include the breaking strength of all lines being less than 1,700 pounds (lbs; 771 kilograms (kg)). This may be accomplished by using whole buoy line that has a breaking strength of 1,700 lbs; or buoy line with weak inserts that result in line having an overall breaking strength of 1,700 lbs;
(10) During any survey that uses vertical lines, buoy lines must be weighted and must not float at the surface of the water and all groundlines must consist of sinking lines. All groundlines must be composed entirely of sinking lines. Buoy lines must utilize weak links. Weak links must break cleanly leaving behind the bitter end of the line. The bitter end of the line must be free of any knots when the weak link breaks. Splices are not considered to be knots. The attachment of buoys, toggles, or other floatation devices to groundlines is prohibited;
(11) All in-water survey gear, including buoys, must be properly labeled with the scientific permit number or identification as LOA Holder's research gear. All labels and markings on the gear, buoys, and buoy lines must also be compliant with the applicable regulations, and all buoy markings must comply with instructions received by the NOAA Greater Atlantic Regional Fisheries Office Protected Resources Division;
(12) All survey gear must be removed from the water whenever not in active survey use (
(13) All reasonable efforts, that do not compromise human safety, must be undertaken to recover gear.
(a)
(1) LOA Holder must use independent, NMFS-approved PSOs and PAM operators, meaning that the PSOs and PAM operators must be employed by a third-party observer provider, must have no tasks other than to conduct observational effort, collect data, and communicate with and instruct relevant crew with regard to the presence of protected species and mitigation requirements;
(2) All PSOs and PAM operators must have successfully attained a bachelor's degree from an accredited college or university with a major in one of the natural sciences, a minimum of 30 semester hours or equivalent in the biological sciences, and at least one undergraduate course in math or statistics. The educational requirements may be waived if the PSO or PAM operator has acquired the relevant skills through a suitable amount of alternate experience. Requests for such a waiver must be submitted to NMFS Office of Protected Resources and must include written justification containing alternative experience. Alternate experience that may be considered includes but is not limited to: previous work experience conducting academic, commercial, or government-sponsored marine mammal visual and/or acoustic surveys; or previous work experience as a PSO/PAM operator. All PSOs and PAM operators should demonstrate good standing and consistently good performance of all assigned duties;
(3) PSOs must have visual acuity in both eyes (with correction of vision being permissible) sufficient enough to discern moving targets on the water's surface with the ability to estimate the target size and distance (binocular use is allowable); ability to conduct field observations and collect data according to the assigned protocols; sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations; writing skills sufficient to document observations, including but not limited to, the number and species of marine mammals observed, the dates and times of when in-water construction activities were conducted, the dates and time when in-water construction activities were suspended to avoid potential incidental take of marine mammals from construction noise within a defined shutdown zone, and marine mammal behavior; and the ability to communicate orally, by radio, or in-person, with project personnel to provide real-time information on marine mammals observed in the area;
(4) All PSOs must be trained in northwestern Atlantic Ocean marine mammal identification and behaviors and must be able to conduct field observations and collect data according to assigned protocols. Additionally, PSOs must have the ability to work with all required and relevant software and equipment necessary during observations (as described in paragraphs (b)(5) and (b)(6) of this section);
(5) All PSOs and PAM operators must successfully complete a relevant training course within the last 5 years, including obtaining a certificate of course completion;
(6) PSOs and PAM operators are responsible for obtaining NMFS' approval. NMFS may approve PSOs and PAM operators as conditional or unconditional. A conditionally-approved PSO or PAM operator may be one who has completed training in the last 5 years but has not yet attained the requisite field experience. An unconditionally approved PSO or PAM operator is one who has completed training within the last 5 years and attained the necessary experience (
(7) At least one on-duty PSO for each activity (
(8) PSOs for cable landfall construction (
(9) LOA Holder must submit NMFS previously approved PSOs and PAM operators to NMFS Office of Protected Resources for review and confirmation of their approval for specific roles at least 30 days prior to commencement of the activities requiring PSOs/PAM operators or 15 days prior to when new PSOs/PAM operators are required after activities have commenced;
(10) For prospective PSOs and PAM operators not previously approved, or for PSOs and PAM operators whose approval is not current, LOA Holder must submit resumes for approval at least 60 days prior to PSO and PAM operator use. Resumes must include information related to relevant education, experience, and training, including dates, duration, location, and description of prior PSO or PAM operator experience. Resumes must be accompanied by relevant documentation of successful completion of necessary training;
(11) PAM operators are responsible for obtaining NMFS approval. To be approved as a PAM operator, the person must meet the following qualifications: The PAM operator must demonstrate that they have prior experience with real-time acoustic detection systems and/or have completed specialized training for operating PAM systems and detecting and identifying Atlantic Ocean marine mammals sounds, in particular: North Atlantic right whale sounds, humpback whale sounds, and how to deconflict them from similar North Atlantic right whale sounds, and other co-occurring species' sounds in the area including sperm whales; must be able to distinguish between whether a marine mammal or other species sound is detected, possibly detected, not detected and similar terminology must be used across companies/projects; where localization of sounds or deriving bearings and distance are possible, the PAM operators need to have demonstrated experience in using this technique; PAM operators must be independent observers (
(12) PAM operators must be able to review and classify acoustic detections in real-time (prioritizing North Atlantic right whales and noting detection of other cetaceans) during the real-time monitoring periods;
(13) PSOs may work as PAM operators and vice versa, pending NMFS-approval; however, they may only perform one role at any one time and must not exceed work time restrictions, which must be tallied cumulatively; and
(14) All PSOs and PAM operators must complete a Permits and Environmental Compliance Plan training and a 2-day refresher session that must be held with the PSO provider and Project compliance representative(s) prior to the start of in-water project activities (
(b)
(1) PSOs must monitor for marine mammals prior to, during, and following all impact pile driving, vibratory pile driving, and HRG surveys that use sub-bottom profilers (with specific monitoring durations and needs described in paragraphs (c) through (f) of this section, respectively). Monitoring must be done while free from distractions and in a consistent, systematic, and diligent manner;
(2) All PSOs must be located at the best vantage point(s) on any platform, as determined by the Lead PSO, in order to obtain 360-degree visual coverage of the entire clearance and shutdown zones around the activity area, and as much of the Level B harassment zone as possible. PAM operators may be located on a vessel or remotely on-shore, but must have the appropriate equipment (
(3) All on-duty PSOs must remain in real-time contact with the on-duty PAM operator(s). PAM operators must immediately communicate all acoustic detections of marine mammals to PSOs, including any determination regarding species identification, distance, and bearing (where relevant) relative to the pile being driven and the degree of confidence (
(4) The PAM operator must inform the Lead PSO(s) on duty of animal detections approaching or within applicable ranges of interest to the activity occurring via the data collection software system, (
(5) PSOs must use high magnification (25x) binoculars, standard handheld (7x) binoculars, and the naked eye to search continuously for marine mammals. During foundation installation, at least two PSOs on the pile driving-dedicated PSO vessel must be equipped with functional Big Eye binoculars (
(6) During periods of low visibility (
(7) PSOs and PAM operators must not exceed 4 consecutive watch hours on duty at any time, must have a 2-hour (minimum) break between watches, and must not exceed a combined watch
(8) During daylight hours when equipment is not operating, LOA Holder must ensure that visual PSOs conduct, as rotation schedules allow, observations for comparison of sighting rates and behavior with and without use of the specified acoustic sources. Off-effort PSO monitoring must be reflected in the monthly PSO monitoring reports.
(c)
(1) PSOs and PAM operator(s), using a NMFS-approved PAM system, must monitor for marine mammals 60 minutes prior to, during, and 30 minutes following all pile-driving. If PSOs cannot visually monitor the minimum visibility zone prior to pile driving at all times using the equipment described in paragraphs (b)(5) and (6) of this section, pile-driving operations must not commence or must shutdown if they are currently active;
(2) At least three on-duty PSOs must be stationed and observing from the activity platform during pile driving and at least three on-duty PSOs must be stationed on each dedicated PSO vessel. Concurrently, at least one PAM operator per acoustic data stream (equivalent to the number of acoustic buoys) must be actively monitoring for marine mammals 60 minutes before, during, and 30 minutes after foundation pile driving in accordance with a NMFS-approved PAM Plan;
(3) LOA Holder must conduct PAM for at least 24 hours immediately prior to pile driving activities. The PAM operator must review all detections from the previous 24-hour period immediately prior to pile driving.
(d)
(1) At least two PSOs must be on active duty during all activities related to the installation and removal of cofferdams and goal posts; and
(2) PSOs must monitor the clearance zone for the presence of marine mammals for 30 minutes before, throughout the installation of the sheet piles and casing pipe and for 30 minutes after all pile driving activities have ceased. Sheet pile or casing pipe installation must only commence when visual clearance zones are fully visible (
(e)
(1) Between four and six PSOs must be present on every 24-hour survey vessel and two to three PSOs must be present on every 12-hour survey vessel;
(2) At least one PSO must be on active duty monitoring during HRG surveys conducted during daylight (
(3) PSOs on HRG vessels must begin monitoring 30 minutes prior to activating acoustic sources, during the use of these acoustic sources, and for 30 minutes after use of these acoustic sources has ceased;
(4) Any observations of marine mammals must be communicated to PSOs on all nearby survey vessels during concurrent HRG surveys; and
(5) During daylight hours when survey equipment is not operating, LOA Holder must ensure that visual PSOs conduct, as rotation schedules allow, observations for comparison of sighting rates and behavior with and without use of the specified acoustic sources. Off-effort PSO monitoring must be reflected in the monthly PSO monitoring reports.
(f)
(1) All captains and crew conducting fishery surveys must be trained in marine mammal detection and identification; and
(2) Marine mammal monitoring must be conducted within 1 nmi from the planned survey location by the trained captain and/or a member of the scientific crew for 15 minutes prior to deploying gear, throughout gear deployment and use (unless using ropeless gear), and for 15 minutes after haul back.
(g)
(1) Prior to initiation of any specified activities, LOA Holder must demonstrate in a report submitted to NMFS Office of Protected Resources that all required training for LOA Holder personnel (including the vessel crews, vessel captains, PSOs, and PAM operators) has been completed;
(2) LOA Holder must use a standardized reporting system during the effective period of the LOA. All data collected related to the Project must be recorded using industry-standard software that is installed on field laptops and/or tablets. Unless stated otherwise, all reports must be submitted to NMFS Office of Protected Resources (
(3) For all visual monitoring efforts and marine mammal sightings, the following information must be collected and reported to NMFS Office of Protected Resources: the date and time that monitored activity begins or ends; the construction activities occurring during each observation period; the watch status (
(4) If a marine mammal is acoustically detected during PAM monitoring, the following information must be recorded and reported to NMFS: location of hydrophone (latitude and longitude; in Decimal Degrees) and site name; bottom depth and depth of recording unit (in meters); recorder (model & manufacturer) and platform type (
(i) For each detection, the following information the following information must be noted: species identification (if possible); call type and number of calls (if known); temporal aspects of vocalization (date, time, duration, etc.; date times in ISO 8601 format); confidence of detection (detected, or possibly detected); comparison with any concurrent visual sightings; location and/or directionality of call (if determined) relative to acoustic recorder or construction activities; location of recorder and construction activities at time of call; name and version of detection or sound analysis software used, with protocol reference; minimum and maximum frequencies viewed/monitored/used in detection (in Hz); and name of PAM operator(s) on duty;
(5) LOA Holder must compile and submit weekly reports during foundation installation to NMFS Office of Protected Resources that document the daily start and stop of all pile driving associated with the Project; the start and stop of associated observation periods by PSOs; details on the deployment of PSOs; a record of all detections of marine mammals (acoustic and visual); any mitigation actions (or if mitigation actions could not be taken, provide reasons why); and details on the noise attenuation system(s) used and its performance. Weekly reports are due on Wednesday for the previous week (Sunday to Saturday) and must include the information required under this section. The weekly report must also identify which turbines become operational and when (a map must be provided). Once all foundation pile installation is completed, weekly reports are no longer required by LOA Holder;
(6) LOA Holder must compile and submit monthly reports to NMFS Office of Protected Resources during foundation installation that include a summary of all information in the weekly reports, including project activities carried out in the previous month, vessel transits (number, type of vessel, MMIS number, and route), number of piles installed, all detections of marine mammals, and any mitigative action taken. Monthly reports are due on the 15th of the month for the previous month. The monthly report must also identify which turbines become operational and when (a map must be provided). Full PAM detection data and metadata must also be submitted monthly on the 15th of every month for the previous month via the webform on the NMFS North Atlantic Right Whale Passive Acoustic Reporting System website at
(7) LOA Holder must submit a draft annual report to NMFS Office of Protected Resources no later than 90 days following the end of a given calendar year. LOA Holder must provide a final report within 30 days following resolution of NMFS' comments on the draft report. The draft and final reports must detail the following: the total number of marine mammals of each species/stock detected and how many were within the designated Level A harassment and Level B harassment zone(s) with comparison to authorized take of marine mammals for the associated activity type; marine mammal detections and behavioral observations before, during, and after each activity; what mitigation measures were implemented (
(8) LOA Holder must submit its draft 5-year report to NMFS Office of Protected Resources on all visual and acoustic monitoring conducted within 90 calendar days of the completion of activities occurring under the LOA. A 5-year report must be prepared and submitted within 60 calendar days following receipt of any NMFS Office of Protected Resources comments on the draft report. If no comments are received from NMFS Office of Protected Resources within 60 calendar days of NMFS Office of Protected Resources receipt of the draft report, the report shall be considered final;
(9) LOA Holder must provide the initial results of the complete SFV measurements to NMFS Office of Protected Resources in an interim report after each foundation installation event as soon as they are available and prior to any subsequent foundation installation, but no later than 48 hours after each completed foundation installation event. The report must include, at minimum: hammer energies/schedule used during pile driving, including, the total number of strikes and the maximum hammer energy; the model-estimated acoustic ranges (R
(10) LOA Holder must conduct abbreviated SFV for all foundation installations for which the complete SFV monitoring is not carried out, whereas a single acoustic recorder must be placed at an appropriate distance from the pile, in alignment with the completed Biological Opinion. All results must be included in the weekly reports. Any indications that distances to the identified Level A harassment and Level B harassment thresholds for marine mammals were exceeded must be addressed by LOA Holder, including an explanation of factors that contributed to the exceedance and corrective actions that were taken to avoid exceedance on subsequent piles;
(11) The final results of all SFV measurements from each foundation installation must be submitted as soon as possible, but no later than 90 days following completion of all annual SFV measurements. The final reports must include all details included in the interim report and descriptions of any notable occurrences, explanations for results that were not anticipated, or actions taken during foundation installation. The final report must also include at least the maximum, mean, minimum, median (L
(12) If at any time during the project LOA Holder becomes aware of any issue or issues which may (to any reasonable subject-matter expert, including the persons performing the measurements and analysis) call into question the validity of any measured Level A harassment or Level B harassment isopleths to a significant degree, which were previously transmitted or communicated to NMFS Office of Protected Resources, LOA Holder must inform NMFS Office of Protected Resources within 1 business day of becoming aware of this issue or before the next pile is driven, whichever comes first;
(13) If a North Atlantic right whale is acoustically detected at any time by a project-related PAM system, LOA Holder must ensure the detection is reported as soon as possible to NMFS, but no longer than 24 hours after the detection via the
(14) Full detection data, metadata, and location of recorders (or GPS tracks, if applicable) from all real-time hydrophones used for monitoring during construction must be submitted within 90 calendar days following completion of activities requiring PAM for mitigation via the International Organization for Standardization (ISO) standard metadata forms available on the NMFS Passive Acoustic Reporting System website
(15) LOA Holder must submit situational reports if the following circumstances occur, including all instances wherein an exemption is taken must be reported to NMFS Office of Protected Resources within 24 hours, in specific circumstances, including but not limited to the following:
(i) If a North Atlantic right whale is observed at any time by PSOs or project personnel, LOA Holder must ensure the sighting is immediately (if not feasible, as soon as possible and no longer than 24 hours after the sighting) reported to NMFS, the U.S. Coast Guard, and the Right Whale Sightings Advisory System (RWSAS). If in the Northeast Region (Maine to Virginia/North Carolina border) call (866-755-6622). If in the Southeast Region (North Carolina to Florida) call (877-WHALE-HELP or 877-942-5343). If circumstances arise where calling NMFS is not possible, reports must be made to the U.S. Coast Guard via channel 16 or through the WhaleAlert app (
(ii) If a North Atlantic right whale is observed at any time by PSOs or project personnel, LOA Holder must submit a summary report to NMFS Greater Atlantic Regional Fisheries (GARFO;
(iii) If a large whale other than a North Atlantic right whale is observed at any time by PSOs or project personnel, LOA Holder must report the sighting to the WhaleAlert app (
(iv) In the event that personnel involved in the Project discover a stranded, entangled, injured, or dead marine mammal, LOA Holder must immediately report the observation to NMFS. If in the Greater Atlantic Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding Hotline (866-755-6622); if in the Southeast Region (North Carolina to Florida), call the NMFS Southeast Stranding Hotline (877-942-5343). Separately, LOA Holder must report the incident to NMFS Office of Protected Resources (
(v) In the event of a vessel strike of a marine mammal by any vessel associated with the Project or if project activities cause a non-auditory injury or death of a marine mammal, LOA Holder must immediately report the incident to NMFS. If in the Greater Atlantic Region (Maine to Virginia) call the NMFS Greater Atlantic Stranding Hotline (866-755-6622) and if in the Southeast Region (North Carolina to Florida) call the NMFS Southeast Stranding Hotline (877-942-5343). Separately, LOA Holder must immediately report the incident to NMFS Office of Protected Resources (
(16) Any lost gear associated with the fishery surveys will be reported to the NOAA Greater Atlantic Regional Fisheries Office Protected Resources Division (
(a) To incidentally take marine mammals pursuant to this subpart, LOA Holder must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed February 4, 2029, the expiration date of this subpart.
(c) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, LOA Holder must apply for and obtain a modification of the LOA as described in § 217.297.
(d) The LOA must set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (
(3) Requirements for monitoring and reporting.
(e) Issuance of the LOA must be based on a determination that the level of taking must be consistent with the findings made for the total taking allowable under the regulations of this subpart.
(f) Notice of issuance or denial of an LOA must be published in the
(a) An LOA issued under §§ 217.292 and 217.296 or this section for the activities identified in § 217.290(a) shall be modified upon request by LOA Holder, provided that:
(1) The specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for 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 under this subpart were implemented.
(b) For a LOA modification request by the applicant that includes changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section), the LOA shall be modified, provided that:
(1) NMFS determines that the changes to the activity or the mitigation, monitoring, or reporting do not change the findings made for the regulations in this subpart and do not result in more than a minor change in the total estimated number of takes (or distribution by species or years), and
(2) NMFS may publish a notice of proposed modified LOA in the
(c) An LOA issued under §§ 217.292 and 217.296 or this section for the activities identified in § 217.290(a) may be modified by NMFS under the following circumstances:
(1) Through adaptive management, NMFS may modify (including delete, modify, or add to) the existing mitigation, monitoring, or reporting measures (after consulting with LOA Holder regarding the practicability of the modifications), if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring;
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA include, but are not limited to:
(A) Results from LOA Holder's monitoring(s);
(B) Results from other marine mammals and/or sound research or studies; and
(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 LOA.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS shall publish a notice of proposed LOA in the
(2) If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in the LOA issued pursuant to §§ 217.292 and 217.296 or this section, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the
Environmental Protection Agency (EPA).
Proposed rule and notice of public hearing.
The Environmental Protection Agency (EPA or the Agency) is proposing a regulation to revise the technology-based effluent limitations guidelines and standards (ELGs) for the meat and poultry products (MPP) point source category. The proposed rule would improve water quality and protect human health and the environment by reducing the discharge of nutrients and other pollutants to the nation's surface waters. EPA is proposing several regulatory options, including the preferred option discussed in this notice. The preferred option is estimated to cost $232 million annually and reduce pollutant discharges by approximately 100 million pounds per year.
Comments must be received on or before March 25, 2024.
You may send comments, identified by Docket ID No. EPA-HQ-OW-2021-0736, by any of the following methods:
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Steve Whitlock, Engineering and Analysis Division, Office of Water (4303T), Environmental Protection Agency, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: 202-566-1541; email address:
• Technical Development Document for Proposed Effluent Limitations Guidelines and Standards for the Meat and Poultry Products Point Source Category (TDD), Document No. 821-R-23-011. This report summarizes the technical and engineering analyses supporting the proposed rule including cost methodologies, pollutant removal estimates, non-water quality environmental impacts, and calculation of the proposed effluent limitations.
• Environmental Assessment Analysis for Proposed Effluent Limitations Guidelines and Standards for the Meat and Poultry Products Point Source Category (EA Report), Document No. 821-R-23-012. This report summarizes the potential environmental and human health impacts estimated to result from implementation of the proposed rule. The report also describes the environmental justice analysis conducted.
• Benefit and Cost Analysis for Proposed Effluent Limitations Guidelines and Standards for the Meat and Poultry Products Point Source Category (BCA Report), Document No. 821-R-23-013. This report summarizes the societal benefits and costs estimated to result from implementation of the proposed rule.
• Regulatory Impact Analysis for Proposed Effluent Limitations Guidelines and Standards for the Meat and Poultry Products Point Source Category (RIA), Document No. 821-R-23-014. This report presents a profile of the MPP industry, a summary of estimated costs and impacts associated with the proposed rule, and an assessment of the potential impacts on employment and small businesses.
• Docket Index for the Proposed Effluent Limitations Guidelines and Standards for the Meat and Poultry Products Point Source Category. This document provides a list of the additional memoranda, references, and other information EPA relied on for the proposed revisions to the MPP ELGs.
EPA is proposing revisions to a regulation that would apply to wastewater discharges from meat and poultry products (MPP) facilities. The MPP industry discharges large quantities of nutrients, such as nitrogen and phosphorus, that enter the Nation's waters. Nutrient pollution is one of the most widespread, costly, and challenging environmental problems impacting water quality in the United States. Excessive nitrogen and phosphorus in surface water can lead to a variety of problems, including eutrophication and harmful algal blooms, that have negative impacts on human health and the environment. EPA reported in
The MPP industry has an estimated 5,055 facilities across the country that engage in meat and/or poultry slaughter, further processing, and/or rendering. Proposed requirements would reduce the amount of nutrients and other pollutants discharged from the MPP industry, both directly into waters of the United States under state or EPA-issued NPDES permits and indirectly via sanitary sewers or transport to and through municipal sewage treatment plants, also known as Publicly Owned Treatment Works (POTWs). Importantly, this rule would advance progress on environmental justice goals.
EPA initially promulgated the MPP ELGs in 1974 and amended the regulation in 2004. It currently applies only to direct dischargers (those that discharge directly to a water of the United States), and only to about 150 of the 5,055 MPP facilities in the industry. Phosphorus is not regulated under the current ELGs. Pollutants in the wastewater from MPP indirect dischargers, which are not currently regulated by the ELGs, can interfere with or pass through POTWs. Research also shows communities near MPP facilities are likely to experience multiple environmental stressors, and in these communities, minority and low-income percentiles exceed national averages. Additionally, some MPP facilities are already using available and affordable technologies that can be used at additional facilities nationwide to reduce pollutant discharges from the MPP industry.
EPA is considering a range of options in this rulemaking. The options include more stringent effluent limitations on total nitrogen, new effluent limitations on total phosphorus, updated effluent limitations for other pollutants, new pretreatment standards for indirect dischargers, and revised production thresholds for some of the subcategories in the existing rule. EPA is also requesting comment on potential effluent limitations on chlorides for high chloride waste streams, establishing effluent limitations for
EPA is proposing a preferred regulatory option (described in section VII below) and seeking comment on the other options. EPA estimates the preferred regulatory option (Option 1) would reduce pollutant discharges by approximately 100 million pounds per year. EPA predicts the preferred regulatory option would result in environmental and ecological improvements, including reduced adverse impacts to wildlife and human health.
EPA estimates that the proposed rule based on the preferred regulatory option will cost $232 million per year in social costs and result in $90 million per year in monetized benefits using a 3 percent discount rate and $227 million per year in social costs and result in $85 million per year in monetized benefits using a 7 percent discount rate. The benefit numbers are based on modeling water quality improvements in five regional water basins and then extrapolating the benefits results from those basins to remainder of the country.
Not all costs and benefits can be fully quantified and monetized, and importantly, EPA anticipates the proposed rule would also generate important unquantified benefits (
EPA proposes to revise the ELGs for the MPP industry based on Best Practicable Control Technology Currently Available (BPT), Best Conventional Pollutant Control Technology (BCT), Best Available Technology Economically Achievable (BAT), Best Available Demonstrated Control Technology (BADCT) for New Source Performance Standards (NSPS), Pretreatment Standards for Existing Sources (PSES), and Pretreatment Standards for New Sources (PSNS). BPT, BCT, and BAT would apply to existing facilities that directly discharge to waters of the U.S. BADCT/NSPS would apply to new sources that directly discharge to waters of the U.S. PSES and PSNS would apply to existing and new sources, respectively, that discharge indirectly via POTWs.
EPA is proposing three regulatory options that build on the current MPP ELGs. Option 1, which is EPA's preferred regulatory option in this proposed rule, would include new phosphorus limits and revised nitrogen limits
The following discussion is organized by discharge type (direct or indirect) and by facility status (existing or new):
Under all options, NSPS based on BADCT would be equal to BAT, BPT, and BCT. Thus, Options 1, 2 and 3 would contain the same requirements for existing and new direct discharging facilities.
Under all options, PSNS would be equal to PSES. Thus, Options 1, 2, and 3 would contain the same requirements for existing and new indirect discharging facilities.
Additional details about the proposed ELGs are described in Section VII of this preamble.
Submit your comments, identified by Docket ID No. EPA-HQ-OW-2021-0736, at
Entities potentially regulated by any final rule following this action include:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated by this action. This table includes the types of entities that the EPA is now aware could potentially be regulated by this action. Other types of entities not included could also be regulated. To determine whether your entity is regulated by this action, you should carefully examine the applicability criteria found in 40 CFR 432.1, 432.10, 432.20, 432.30, 432.40, 432.50, 432.60, 432.70, 432.80, 432.90, 432.100, 432.110, and 432.120 and the definitions in 40 CFR 432.2. If you have questions regarding the applicability of this action to a particular entity, consult
The Agency is proposing to revise the existing MPP ELGs and is soliciting comment on possible revisions and additions to the ELGs for existing and new sources in the MPP point source category.
EPA is proposing to promulgate this rule under the authority of sections 301, 304, 306, 307, 308, 402, and 501 of the Clean Water Act (CWA), 33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342, and 1361.
This proposed action is estimated to cost $232 million per year in social costs and result in $90 million per year in monetized benefits using a 3 percent discount rate and $227 million per year in social costs and result in $85 million per year in monetized benefits using a 7 percent discount rate. The current benefit numbers reflect the national effects of increased air pollution and greenhouse gas emissions under the rule. EPA also expects that there will be additional non-monetized benefits that result from the proposed action. See the Benefits Cost Analysis for additional information on monetization and quantification of health, ecological, market, and economic productivity benefits.
Congress passed the Federal Water Pollution Control Act Amendments of 1972, also known as the Clean Water Act (“CWA” or “the Act”), to “restore and maintain the chemical, physical, and biological integrity of the Nation's waters” (33 U.S.C. 1251(a)). The CWA establishes a comprehensive program for protecting our nation's waters. Among its core provisions, the CWA prohibits the discharge of pollutants from a point source to waters of the United States (WOTUS), except as authorized under the CWA. Under section 402 of the CWA, discharges may be authorized through a National Pollutant Discharge Elimination System (NPDES) permit. The CWA establishes a two-pronged approach for these permits: technology-based controls that establish the floor of performance for all dischargers, and water quality-based limits where the technology-based limits are insufficient for the discharge to meet applicable water quality standards. To serve as the basis for the technology-based controls, the CWA authorizes EPA to establish nationally applicable, technology-based effluent limitations guidelines and new source performance standards for discharges from different categories of point sources, such as industrial, commercial, and public sources.
Direct dischargers must comply with effluent limitations in NPDES permits. Technology-based effluent limitations in NPDES permits are derived from effluent limitations guidelines (CWA sections 301(b) and 304, 33 U.S.C. 1311(b) and 1314) and new source performance standards (CWA section 306, 33 U.S.C. 1316) promulgated by EPA, or based on best professional judgment (BPJ) where EPA has not promulgated an applicable effluent limitations guideline or new source performance standard (CWA section 402(a)(1)(B), 33 U.S.C. 1342(a)(1)(B); 40 CFR 125.3(c)). The effluent limitations guidelines and new source performance standards established by regulation for categories of industrial dischargers are based on the degree of control that can be achieved using various levels of pollution control technology, as specified in the Act.
The CWA also authorizes EPA to promulgate nationally applicable pretreatment standards that restrict pollutant discharges from categories of indirect dischargers (
EPA promulgates national ELGs for major industrial categories for three classes of pollutants: (1) Conventional pollutants (
EPA develops ELGs that are technology-based regulations for a category of dischargers. EPA bases these regulations on performance of control and treatment technologies in light of the factors specified in CWA section 304(b) and 306 (33 U.S.C. 1314(b), 1316), but after the limitations and standards are established, dischargers may use any technology that meets the limitations and standards. The legislative history of CWA section 304(b) (33 U.S.C. 1314(b)), which is the heart of the effluent guidelines program,
The CWA specifies four types of technology-based ELGs applicable to direct dischargers and two types of pretreatment standards applicable to indirect dischargers, referred to collectively as “effluent limitations guidelines and standards (ELGs)”. These ELGs are summarized below.
For existing direct dischargers, the Act specifies two increasingly-stringent levels of control. The first level of control, BPT, applies to all pollutants (conventional, toxic, and nonconventional pollutants). Traditionally, as is consistent with the statute, its legislative history and caselaw, EPA defines “currently available” based on the average of the best performance of facilities within the industry, grouped to reflect various ages, sizes, processes, or other common characteristics (
BCT represents the second level of stringency for controlling discharge of conventional pollutants. In addition to other factors specified in CWA section 304(b)(4)(B) (33 U.S.C. 1314(b)(4)(B)), the CWA requires that EPA establish BCT limitations after consideration of a two-part “cost-reasonableness” test. EPA explained its methodology for the development of BCT limitations in July 1986 (51 FR 24974 (July 9, 1986)). The Act designates the following as conventional pollutants: BOD, TSS, fecal coliform, pH, and any additional pollutants defined by the Administrator as conventional (CWA section 304(a)(4); 33 U.S.C. 1314(a)(4)). The Administrator designated oil & grease as an additional conventional pollutant (44 FR 44501 (July 30, 1979) and 40 CFR 401.16).
BAT represents the second level of stringency for controlling discharge of toxic and nonconventional pollutants (including nutrients). Courts have referred to this as the CWA's “gold standard” for controlling discharges from existing sources (
BAT reflects the highest performance in the industry and may reflect a higher level of performance than is currently being achieved based on technology transferred from a different subcategory or category, bench scale or pilot plant studies, or foreign plants (
NSPS reflect effluent reductions that are achievable based on BADCT. Owners of new sources have the opportunity to install the best and most efficient production processes and wastewater treatment technologies. As a result, NSPS should represent the most stringent controls attainable through the application of the BADCT for all pollutants (that is, conventional, nonconventional, and toxic pollutants). In establishing NSPS, EPA is directed to take into consideration the cost of achieving the effluent reduction and any non-water quality environmental impacts and energy requirements (CWA section 306(b)(1)(B), 33 U.S.C. 1316(b)(1)(B)).
CWA section 307(b) (33 U.S.C. 1317(b)), of the Act calls for EPA to issue pretreatment standards for discharges of pollutants to POTWs. PSES are designed to prevent the discharge of pollutants that pass through, interfere with, or are otherwise incompatible with the operation of POTWs. Categorical pretreatment standards are technology-based and are analogous to BPT and BAT effluent limitations guidelines, and thus, the Agency typically considers the same factors in promulgating PSES as it considers in promulgating BPT/BAT. The General Pretreatment Regulations,
CWA section 307(c) (33 U.S.C. 1317(c)) calls for EPA to promulgate PSNS. Such pretreatment standards must prevent the discharge of any pollutant into a POTW that may interfere with, pass through, or may otherwise be incompatible with the POTW. EPA promulgates PSNS based on BADCT for new sources. New indirect dischargers have the opportunity to incorporate into their facilities the best available demonstrated technologies. The Agency typically considers the same factors in promulgating PSNS as it considers in promulgating NSPS.
EPA conducted a cross-industry review of publicly available discharge monitoring report (DMR) and toxics release inventory (TRI) data from 2015 on nutrient discharges from industrial point source categories. This review identified industries, based on their discharges of nutrients in wastewater and the potential to reduce their nutrient discharges, that may be candidates for ELG development or revision and prioritized them for further review. EPA then ranked industrial categories by the nutrient loads in their wastewater discharges, specifically looking at the median facility load and number of facilities reporting discharges. The MPP industry ranked as one of the highest in the analysis for total nitrogen and total phosphorus, leading EPA to focus on this industry (USEPA. 2019. EPA-HQ-OW-2019-0618).
To better understand the MPP industry and related nutrient sources, discharges, and treatment, EPA reviewed historical documentation supporting the development of the existing MPP ELGs, analyzed 2015 DMR and TRI data, and contacted several MPP facilities. Many MPP facilities discharging high amounts of nutrients are located in EPA Regions 4 and 5, which provided information on the development of nutrient permit limits and current practices for managing wastewater containing nutrients at MPP facilities. Many of these facilities had permits with water-quality-based ammonia limits more stringent than the existing 2004 MPP ELGs. More than half of the permits reviewed also included water quality-based limits or monitoring requirements for total Kjeldahl nitrogen (TKN), nitrate/nitrite, and/or total phosphorus, which are not regulated under the 2004 MPP ELG.
EPA found that some MPP facilities are performing better than the existing 2004 ELG for nutrient discharges (nitrogen and ammonia), as well as removing phosphorus, which is not regulated under the existing ELG. For nitrogen, the median annual average of 97 direct discharging MPP facilities was 32.8 mg/L, which is well below the 2004 ELG monthly averages of 103 mg/L for poultry and 132 mg/L for meat processors. For ammonia, the median annual average for 119 facilities was approximately 0.5 mg/L, which is far lower than the 4 mg/L required under the ELG regulations. For phosphorus, which is not regulated under the existing ELGs, the median annual average of 140 MPP facilities was less than 2 mg/L indicating that some MPP facilities are meeting water-quality based low phosphorus limits of their NPDES permits using current treatment technologies. These initial results indicated that revised ELGs may be appropriate as the industry is capable of achieving effluent limitations well below the current 2004 regulations.
As a result of the cross-industry review of nutrients in industrial wastewater and the further review of the MPP category, EPA began a detailed study of the MPP industry. The goals of the MPP detailed study were to gain a better understanding of the industry and evaluate whether the ELGs should be revised.
EPA began by collecting publicly available information about the MPP industry. To obtain a list of facilities that may be part of the MPP industry, EPA evaluated industry directories from the U.S. Department of Agriculture (USDA) Food Safety Inspection Service (FSIS), the U.S. Food and Drug Administration (FDA), and the National Renderers Association (NRA). To further develop this list, EPA evaluated information from POTW Annual Reports, EPA's Integrated Compliance Information System National Pollutant Discharge Elimination System (ICIS-NPDES) database, and EPA's TRI database. EPA also engaged with EPA regions, federal agencies, States, clean water organizations, industry stakeholders, environmental groups, and communities in close proximity to MPP facilities to understand different perspectives on the industry and effects of the industry on communities and to gain insights into the industry.
EPA used the publicly available information to analyze the industry. EPA found that the MPP industry discharges the highest phosphorus levels and second highest nitrogen levels of all industrial categories. EPA found the nutrient discharges are from numerous facilities across the country and that the nutrient pollutants are at concentrations that can be reduced with current wastewater treatment technology. Further, some of the studied facilities were already removing nutrients and achieving effluent concentrations well below the limitations in the existing MPP ELGs.
During the detailed study, EPA compiled a list of over 7,000 facilities from the sources listed above that potentially processed meat and poultry products and might be part of the MPP industry. Of these, EPA estimated that approximately 300 are likely direct dischargers. During the rulemaking process, EPA refined the list to 5,055 MPP facilities, of which 171 are direct dischargers. As the existing ELGs only apply to a subset of the direct dischargers, the 2004 MPP ELGs cover approximately 150 facilities. As mentioned, the wastewater from the direct dischargers has high amounts of nutrients. Around 120 of the estimated 150 direct dischargers discharge to waters listed as impaired, with much of the MPP total nitrogen and total phosphorus load discharging to waters impaired for algal growth, ammonia, nutrients, and/or oxygen depletion.
As the majority of MPP facilities are indirect dischargers, which are not currently subject to national categorical pretreatment standards, EPA also studied POTWs that receive MPP wastewater. In reviewing permits for POTWs that receive MPP wastewater, EPA found the majority do not have limits for nitrogen or phosphorus. Thus, many POTWs may not be removing much of the nutrient load discharged by MPP industrial users because many POTWs do not have tertiary treatment designed to remove nutrients. Additionally, many of the POTWs (73%) had permit violations for pollutants found in MPP wastewater (analysis included BOD, TSS, chlorides, nitrogen, phosphorus,
National ELGs can help ensure that all people in the vicinity of industrial direct and indirect discharges receive the same degree of protection from environmental and health hazards, and equal access to the decision-making process to have a healthy environment in which to live, learn, and work. To assess information related to environmental justice, EPA conducted screening analyses of areas with MPP facilities and found 82% of MPP facilities that directly discharge wastewater to waters of the U.S. are within one mile of census block groups with demographic or environmental characteristics of concern. This indicates that such facilities may be disproportionately impacting communities of concern and therefore revised wastewater regulations may benefit these communities.
In 2021, in the
On December 23, 2022, Plaintiffs Cape Fear River Watch, Rural Empowerment Association for Community Help, Waterkeepers Chesapeake, Waterkeeper Alliance, Humane Society of the United States, Food & Water Watch, Environment America, Comite Civico del Valle, Center for Biological Diversity, and Animal Legal Defense Fund filed a complaint alleging that EPA's failure to revise ELGs and to promulgate pretreatment standards for the MPP category constituted failures to act by statutory deadlines in violation of the CWA and Administrative Procedures Act (“APA”) (
Although EPA was in the process of conducting the MPP rulemaking, EPA had not publicly announced any specific timeline for completion. The parties initiated settlement discussions, resulting in a proposed consent decree with deadlines for completion of the rulemaking, which EPA entered into after public notice and comment (88 FR 12930 (Mar. 1, 2023)). Under the consent decree, EPA has obligations to sign a notice of proposed rulemaking by December 13, 2023 and to sign a decision taking final action on the proposal by August 31, 2025 (Consent Decree,
The MPP point source category includes facilities “engaged in the slaughtering, dressing and packing of meat and poultry products for human consumption and/or animal food and feeds. Meat and poultry products for human consumption include meat and poultry from cattle, hogs, sheep, chickens, turkeys, ducks and other fowl as well as sausages, luncheon meats and cured, smoked or canned or other prepared meat and poultry products from purchased carcasses and other materials. Meat and poultry products for animal food and feeds include animal oils, meat meal and facilities that render grease and tallow from animal fat, bones and meat scraps” (40 CFR 432.1).
Based on industry responses to the 2022 MPP Questionnaire, EPA estimates there are 5,055 MPP facilities currently in operation. Table V-1 shows the estimated number of MPP facilities based on facility process based on the 2022 MPP Questionnaire and other publicly available data sources. “Meat First” refers to facilities that slaughter animals excluding poultry. “Meat Further” refers to facilities that further process animal products excluding poultry. “Poultry First” refers to facilities that slaughter poultry. “Poultry Further” refers to facilities that further process poultry. Facilities that process meat and poultry were classified by the type which they process the most. “Render” refers to facilities that only process meat and poultry offcuts, trimmings, bones, dead animals, scrap materials, and other related usable by-products. For more information on how facilities were classified, see the
As shown in Table V-1, there are a large number of MPP facilities in each sector. These facilities are located across the country. Although first processors/slaughterhouses tend to be larger, there is a large range in production volumes across the industry. Based on the questionnaire, 171 facilities have NPDES permits and discharge wastewater directly to waters of the U.S. An additional 3,708 facilities discharge wastewater to POTWs, and 1,176 facilities do not discharge process wastewater. MPP effluent discharges contain pollutants including nitrogen, phosphorus, ammonia, oil & grease, BOD, and chlorides.
EPA evaluated technologies available to control and treat wastewater
The pollutants in MPP wastewaters are similar to those in domestic wastewater. POTWs often have similar wastewater treatment technologies as direct discharging MPP facilities. However, some indirect MPP wastewater discharges have pollutant loads that the receiving POTW cannot handle. These indirect discharges may cause passthrough or interference as those terms are defined in EPA's general pretreatment regulations at 40 CFR 403.3(k) and (p). Also, many POTWs are not equipped to effectively treat all pollutants found in MPP wastewater such as nitrogen, phosphorus, and chlorides. Thus, indirect discharging MPP facilities may need to treat their wastewater before sending it to their POTW in order to meet any local limits established by the control authority under EPA's general pretreatment regulations (40 CFR part 403).
EPA evaluated available technologies that can be used to treat or remove MPP pollutants, individually and in treatment trains. This section is split into subsections based on type of pollutant removal, including conventional pollutants, phosphorus, nitrogen, pathogens, and chlorides. As the evaluated technologies result in sludge production, technologies for solids handling are also included. Discussions on treatment trains are included within applicable sections.
MPP process wastewater contains oil & grease, TSS, and BOD, which are all conventional pollutants. These pollutants can be removed with primary treatment, which removes floating and settleable solids. Typical treatment technologies include screens and DAF.
BOD, nitrogen, and phosphorus are removed through biological, physical, and chemical processes. Biological processes can be used to achieve low levels of BOD and nitrogen and are commonly used at MPP facilities. Microorganisms used in biological wastewater treatment require phosphorus for cell synthesis and energy transport and typically remove 10 to 30 percent of influent phosphorus. Through biological treatment, organic compounds are broken down with bacteria into products including water, CO
Biological treatment systems are often used in series to achieve high rates of nitrogen removal. Wastewater flows from one system to the next, with recycle streams and returned activated sludge returning to various locations of the system. Some examples include:
As mentioned in the biological/organic pollutant removal section, some phosphorus is removed in biological treatment processes. To achieve low levels of phosphorus, chemical addition and/or tertiary filters can be used.
Disinfection destroys remaining pathogenic microorganisms and is generally required for all MPP wastewaters being discharged to surface waters. Chlorination/dechlorination, Ultra-Violet (UV), and some filters can be used to meet effluent limits for pathogens and to inactivate pathogenic microorganisms prior to discharge to surface waters.
Some MPP processes, including hides processing, meat and poultry koshering, and further processing techniques, such as curing, brining, and pickling, commonly produce wastewater streams with high levels of chlorides. Some facilities engage in water softening, which can also produce high chlorides wastestreams. Wastewater treatment technologies commonly found at POTWs and many MPP facilities do not remove chlorides. The optimal chlorides treatment technologies for a facility depends on wastewater strength, climate, land availability, and cost. High chloride wastestreams may be able to be separated from other wastestreams, which can reduce costs and energy required for treatment.
Some wastewater treatment technologies produce industrial sludge. In the MPP industry, sludge is primarily generated by the DAF and clarifiers. The sludge contains oil & grease, organic materials, nitrogen, phosphorus, and chemicals/polymers added in the treatment system. The sludge may have a high-water content, which can be reduced, to reduce volume and save hauling and landfilling costs. Common dewatering technologies include gravity thickening units and the belt filter press. The sludge may be incinerated, land applied, or landfilled, depending on State, local and federal regulations and disposal method availability.
The Agency evaluated the following databases online to locate data and information to support regulatory development: The Agency's ICIS-NPDES database, USDA's Food Safety and Inspection Service's Hazard Analysis and Critical Control Point (HACCP) Databases, the 2020 U.S. Census of Manufactures, Dun & Bradstreet (D&B) Hoover's database, and Experian's Business TargetIQ database. In addition, the Agency conducted a thorough collection and review of secondary sources, which include data, reports, and analyses published by government agencies; reports and analyses published by the MPP industry and its associated organizations; and publicly available financial information compiled by both government and private organizations.
EPA met with or consulted the following organizations for industry information including facility names, addresses and contact information: National Cattlemen's Beef Association, National Pork Producers Council, North American Meat Institute, the North American Renderers Association, and the U.S. Poultry & Egg Association.
The documents cited above were all used by EPA in developing the industry profile, a survey sampling frame, and for stratifying the survey sampling frame. In addition to these publications, EPA examined many other documents that provided useful overviews and analysis of the MPP industry. EPA also conducted general internet searches by company name.
Publicly available data on MPP facilities are limited. EPA has based the population of MPP facilities on data largely from the USDA FSIS. The FSIS dataset compiles information on facility name and location, type(s) of meat and poultry processed, and limited details on size (both employees and amount processed). USDA FSIS does not report details specific to wastewater generation or wastewater treatment. EPA also included a list of renderers from the NRA, and MPP facilities in the ICIS-NPDES dataset, in developing the list of MPP facilities. These data are limited since the NPDES data generally includes only those facilities directly discharging wastewater, although some individual States require pretreatment permits to also be reported.
In order to supplement publicly available data sources, EPA conducted a survey of the MPP industry. EPA developed two questionnaires to collect site-specific technical and economic information to provide a more robust record to support developing regulatory options and conduct analyses required by statutes and executive orders. EPA's Office of Water administered a Census Questionnaire and a Detailed Questionnaire to facilities engaging in meat and poultry processing, including those currently regulated under 40 CFR part 432, and facilities that discharge wastewater directly to waters of the U.S., indirectly to POTWs, or do not discharge wastewater. The Census Questionnaire was administered as a census of the industry to confirm the industry population, as well as general information on the industry, including:
• Processing details (including type of meat or poultry and type of processing),
• Type and size (both production and employees) of the facility, and
• Wastewater generation and treatment information.
EPA used information collected through the Census Questionnaire to confirm the list of facilities that fall within the MPP industry and to identify which MPP facilities generate, treat, and/or discharge wastewater. A statistically representative subset of different types of MPP facilities were asked to complete a more detailed set of questions. This Detailed Questionnaire collected the same information as the Census Questionnaire and additional details on processing operations, types and amount of wastewater generated by operation, wastewater treatment details, and economic data. In addition, EPA collected and analyzed wastewater samples from six MPP facilities that received the Detailed Questionnaire to characterize raw waste streams, wastewater treatment systems, and treated effluent for pollutants of interest.
At the outset of EPA's development of the questionnaires, based on data primarily from USDA FSIS and ICIS-NPDES, EPA estimated the MPP industry had between 7,000 and 8,000 facilities. Because no one data source collects information from all MPP facilities, the exact number was unclear at the time the questionnaires were developed. EPA refined the list of facilities by identifying additional or duplicate facilities and working with trade associations to identify facilities that do not process meat or poultry. EPA conducted a statistical sample of facilities on the list and sent 1,565 unique facilities the Detailed Questionnaire and the other facilities were sent the Census Questionnaire. EPA stratified the list of facilities (
EPA encouraged the participation of all interested parties throughout the development of the MPP rule. The Agency conducted outreach to trade associations that represent the vast majority of the facilities that will be affected by the rule. EPA met with various stakeholders to discuss aspects of the regulation development. EPA also participated in industry meetings and gave presentations on the status of the regulation development. A comprehensive list and description of these meetings can be found in the TDD. EPA also met with environmental groups and Tribal communities and conducted environmental justice outreach. For details on these meetings, see the
EPA analyzed the economic impact of the proposed regulation on both discharging facilities and the firms that own them. These analyses form the basis of EPA's proposed determination that the regulation is economically achievable. EPA also analyzed larger market wide impacts on production levels, prices, and employment. EPA relied on existing sources of economic data for these analyses and to supplement facility and firm information obtained from the industry survey.
When questionnaire responses were available for a facility and its owner, that information was used for the impact analyses, such as the closure analyses and the cost-to-revenue screening analyses that are described in detail in section VIII. When information from the questionnaire was not available, however, EPA relied on two primary sources of external data. The first data source was the USDA FSIS facility-level information. This information was used to supplement facility production and employment estimates. The second data source was D&B Hoovers database of business information. This source was used to supplement revenue, employment, and ownership information at both the firm and facility level.
After estimating facility and firm level costs, EPA analyzed the potential effect on market prices for major industry commodities such as, beef, pork, broiler chickens, and turkeys. EPA also analyzed the potential for changes to national and regional production-levels for these commodities. EPA estimated changes to both short-term and long-term employment levels. Finally, EPA also estimated potential changes to the barriers-to-entry for this industry as well as industry consolidation trends.
The primary data source for the sector and industry-level analyses is USDA's Economic Research Service (ERS). The ERS analyzes trends and emerging issues in the agricultural sector and regularly publish data on farm sector performance and farm households' well-being; farm size and concentration; market analysis, data, and projections on commodity supply, demand, and prices; and Federal farm policies. EPA also used results from agricultural market studies published in peer reviewed journals.
EPA conducted several data collection activities in support of developing the proposed rule. EPA used these data to develop an industry profile, evaluate industry subcategorization, determine wastewater characteristics and potential pollution control technologies, review potential pollutant load reductions and costs associated with certain technology options, review environmental impacts associated with discharges from this industry, and develop pollutant limitations.
During 2022, EPA conducted site visits at nine different MPP facilities, specifically three meat facilities, five poultry facilities, and one independent rendering facility. In selecting candidates for site visits, EPA attempted to identify facilities with advanced wastewater treatment technologies across the different types of operations performed in the industry. During each visit, EPA collected information on facility process operations including recent changes and upgrades, wastewater treatment operations, water usage, and waste management operations. See the TDD for additional details on site visits.
Between August and November 2022, EPA conducted a sampling program at six MPP facilities located throughout the United States to collect wastewater characterization data and treatment performance data.
EPA selected facilities based on nitrogen and phosphorus discharge data reported in DMRs and wastewater treatment information obtained from permits, permit application data, and site visits. EPA selected three meat facilities, two poultry facilities, and one independent rendering facility with low discharges of nutrients and/or phosphorus. All selected facilities were direct discharge facilities.
During each sampling episode, EPA collected wastewater samples for five consecutive days. Sampling points varied by facility and wastewater treatment system, but in general, EPA collected the following samples at all selected facilities:
• Treatment system influent (untreated wastewater). Sample collected downstream of screening (if present) to ensure large solids were removed to facilitate sampling.
• Effluent from primary treatment (or influent to biological treatment). Primary treatment typically included a DAF unit or anaerobic basin/lagoon.
• Effluent from biological treatment (or influent to tertiary treatment). Biological treatment typically included complete nitrification/denitrification.
• Effluent from tertiary treatment (
• Final effluent from the treatment system, if different than effluent from last level of treatment (
EPA also collected operations data during the sampling episode to allow for an engineering assessment of the design, operation, and performance of treatment systems at MPP facilities. Specifically, EPA collected system design information, as well as daily operations data (
Based on conversations with industry, most MPP facilities use drinking water sources (public water supplies or well water) for all source water. Furthermore, facilities may treat their source water with sodium hypochlorite (NaOCl) or water softeners before use as the facilities are generating food-grade products (USEPA. 2022. DCN MP00123, DCN MP00276, DCN MP00138, DCN MP00142). For these reasons and because EPA does not expect drinking water to contain nutrients or other pollutants at levels found in MPP wastewater, EPA did not collect source water samples.
EPA identified pollutants of interest in MPP wastewater based on data from the previous MPP rulemaking (USEPA, 2004) and literature searches. Below is a list of pollutant or pollutant groups chosen by EPA for the MPP sampling program.
See the
As previously described, EPA's 2019 cross-cutting review of nutrient discharges from 59 industrial categories found that the MPP point source category discharged some of the highest nitrogen and phosphorus levels of all industries. OW initiated a detailed study in 2020 and announced a rulemaking to revise the ELGs in EPA's Preliminary Plan 15 based on information suggesting facilities can do more to control nutrients and other pollutants and that revisions could reduce discharges affecting underserved and overburdened communities (USEPA. 2021. EPA-821-R-21-003). EPA identified technologies currently in use by MPP facilities that can further reduce nitrogen discharges below the levels that are found in the existing ELGs, which were last revised in 2004. In addition, MPP facilities are currently using technologies to remove phosphorus, which is not regulated under the existing MPP ELGs. This proposal evaluates three regulatory options as shown in Table VII-2 of this preamble. While developing these regulatory options, EPA's goal was to reduce pollutant discharges to surface waters, reduce and/or eliminate interference and passthrough at POTWs receiving MPP wastewater, and establish effluent limits and pretreatment standards based on technologies that are available and economically achievable for the industry, while minimizing impacts to small business.
EPA considered and continues to consider ways to minimize impacts to small business when developing the regulatory options consistent with the statutory factors. As described in Section V, EPA identified 5,055 MPP facilities generating process wastewater, and 3,879 of these facilities discharge to waters of the U.S. directly or indirectly. EPA carefully considered impacts of new or revised effluent limitations and pretreatment standards on small business by using facility production thresholds to distinguish smaller facilities with lower revenues from larger facilities. In developing the options, EPA evaluated differing thresholds for applicability of the proposed rule provisions to evaluate how impacts to small business would vary as more and smaller facilities would be subject to new and/or more stringent effluent limitations and pretreatment standards. The record supports that the impacts to small business from the preferred option (Option 1) would not be significant (see Section XVI.C). Under Option 1, most MPP facilities (79 percent) fall below the proposed production thresholds, and therefore, would have no new limitations. The proposed new limitations under Option 1 would impact 844 facilities, representing 21 percent of the total number of MPP facilities discharging to waters of the U.S. and to POTWs.
Under the most expansive option proposed (Option 3), new limitations would impact 1,618 facilities of the 3,879, or 42 percent of facilities discharging to waters of the U.S. and to POTWs. EPA also considered minimizing impacts to small businesses by basing effluent limitations on lower cost wastewater treatment technologies for facilities with lower production. For example, in Option 3, indirect discharging facilities producing below 5 million pounds per year would have no new requirements and indirect discharging facilities producing between 5 and 30 million pounds per year would have effluent limitations based on lower cost pretreatment technologies consisting of screening and DAF to control conventional pollutants only. Facilities producing 30 million pounds per year or greater would have additional requirements that include both conventional pollutant removal and nitrogen and phosphorus removal, and this would impact only 21 percent of indirect discharging facilities.
Table VII-1 shows the total number of MPP facilities that have discharges followed by the number of facilities that EPA estimates would incur costs to comply with the requirements of the various regulatory options. All options build on the existing MPP ELGs and are based on three technologies: conventional pollutant (
Nitrogen removal is carried out through a three-step biological process: (1) The conversion of ammonia from organic nitrogen by hydrolysis and microbial activities, called ammonification; (2) the aerobic conversion of ammonia to nitrate by reacting the ammonia with oxygen in a process called nitrification; and (3) the conversion of nitrate to nitrogen gas by reacting the nitrate with organic carbon under anoxic conditions in a process called denitrification. Phosphorus can be removed from wastewater by biological uptake by microorganisms and by chemical precipitation with a metal cation. Depending on the target concentration, a plant process might employ both technologies. Such a combined approach might be of particular benefit if the target concentration is very low and the starting concentration is high. In such a case, biological removal is used to remove the bulk of the phosphorus, and chemical polishing follows to achieve the final concentration; such an approach tends to reduce sludge formation from denitrification (USEPA. 2008. EPA 832-R-08-006).
For direct dischargers, all proposed options would establish revised effluent limitations that build upon the wastewater treatment systems that are the basis of the existing MPP ELGs. The ELGs that currently apply to these facilities are based on screens, DAF, anaerobic lagoons, biological treatment to achieve nitrification and partial denitrification, and chlorination/dechlorination. The effluent limitations for direct dischargers in today's proposal are based on more complete denitrification. Therefore, large facilities that already have denitrification technology for nitrogen removal would likely need to add more complete denitrification and chemical phosphorus removal technologies to comply with the proposed effluent limitations for total nitrogen and phosphorus. Smaller facilities could be subject to nutrient limits under the lower production thresholds in Option 3 and would presumably need to install this technology for the first time, since these facilities are currently below the applicability threshold for the existing ELG.
Since there are no national pretreatment standards applicable to the MPP category, indirect discharging facilities are currently only subject to any local limits established by the control authority under the general pretreatment regulations at 40 CFR part 403. Wastewater treatment in place at indirect discharging facilities therefore ranges from no treatment to some treatment. Treatment ranges from basic treatment, such as screens and oil water separators, or more complex treatment such as DAF, anaerobic lagoons, biological treatment to achieve nitrification and denitrification, and phosphorus removal. To meet the proposed conventional pollutant pretreatment standards under the preferred Option 1, which is based on screens and DAF technology, existing indirect discharging facilities with no treatment in place now would likely need to install similar technologies. To meet the nitrogen and phosphorus pretreatment standards contained in Options 2 and 3, many indirect dischargers would likely need to add additional treatment such as anaerobic lagoons, biological treatment to achieve nitrification and full denitrification, and chemical phosphorus removal technologies. However, as described later in this preamble, EPA is proposing to include “conditional limits” under Options 2 and 3 which would allow an exemption from nutrient pretreatment standards for indirect dischargers that are discharging to POTWs that have nutrient removal capabilities that result in equivalent nutrient removal.
Option 1 is EPA's preferred option and builds on the existing MPP ELGs by adding new effluent limitations for large direct and indirect dischargers. Option 1 would include new phosphorus limits for large direct dischargers based on chemical phosphorus removal technology, more stringent nitrogen limits for large direct dischargers based on full (not partial) denitrification, and new conventional pollution limits (pretreatment standards) for large indirect dischargers based on very basic wastewater treatment such as screening and DAF technologies to prevent passthrough and interference at POTWs. EPA requests comment on the concept of allowing POTWs, control authorities, or permit authorities to waive, under certain circumstances, the new conventional pollutant limits for large indirect dischargers. Although EPA is unclear how this would work in practice, it is possible that POTWs not experiencing passthrough and interference may be able to waive these pretreatment standards while continuing to prevent passthrough and interference. Additionally, POTWs that perform denitrification may want to waive BOD limits for their MPP industrial users so they can receive more carbon to support bacterial conversion of nitrates to nitrogen gas. EPA requests comment both on whether
Large refers to the existing rule production thresholds of greater than 50 million pounds per year of finished product produced for meat further processors (Subcategories F-I) and in terms of LWK for meat slaughtering (Subcategories A-D). For poultry slaughtering (Subcategory K) large also refers to existing rule production thresholds of greater than 100 million pounds per year of LWK, greater than 7 million pounds per year of finished product produced for poultry further processors (Subcategory L), and 10 million pounds per year of raw material processed for renderers (Subcategory J).
Option 2 builds on (includes all requirements in) Option 1 and would add nitrogen and phosphorus pretreatment standards for some large indirect discharging slaughterhouses and renderers. Specifically, Option 2 would add phosphorus and nitrogen limits for indirect discharging slaughterhouses producing greater than or equal to 200 million pounds per year and indirect discharging renderers producing greater than or equal to 350 million pounds per year.
Option 3 extends the requirements for both direct and indirect discharging facilities under Options 1 and 2 to smaller facilities. For direct discharging facilities, Option 3 would apply phosphorus and nitrogen limits to all subcategories producing greater than or equal to 10 million pounds per year, and additional more stringent nitrogen limits in all subcategories producing greater than or equal to 20 million pounds per year. For all indirect discharging facilities, Option 3 would require conventional pollutant limits for facilities producing greater than 5 million pounds per year, and nitrogen and phosphorus limits for facilities producing greater than 30 million pounds per year.
Additionally, all options would include stricter fecal coliform limits for direct discharging facilities, based on chlorination/dechlorination and UV disinfection (which is the same technology basis for the existing limitations for fecal coliform).
In addition to the options described above, EPA solicits comment on including three additional requirements in any final rule. First, limitations on the discharge of chlorides by establishing a zero discharge of pollutants requirement for certain high chlorides wastestreams. The technology basis for this requirement is segregation of these wastestreams from other process wastewater streams and management via sidestream evaporation. EPA solicits comment on including this provision for all facilities (both direct and indirect) producing more than 5 million pounds per year with high chlorides processes. Second, EPA solicits comment on conditional limitations for phosphorus and nitrogen discharges from indirect dischargers under Options 2 and 3. Third, EPA solicits comment on limitations on
As described above, EPA proposes to revise ELGs for facilities in the following MPP subcategories: Simple Slaughterhouses (Subcategory A), Complex Slaughterhouses (Subcategory B), Low-Processing Packinghouses (Subcategory C), and High-Processing Packinghouses (Subcategory D). Although the proposed options may establish differing production thresholds for applicability under these subcategories, EPA proposes to leave the definitions of these subcategories unchanged because the definitions are not based on production thresholds and effluent limitations in the proposed regulatory options would apply to a subset of these subcategories as they are currently defined.
The Agency is not proposing revised ELGs for the small processor category (Subcategory E). Subcategory E is defined based on a size threshold of no more than 6,000 pounds per day (2.19M pounds per year) of any type or combination of finished product. EPA also proposes to leave applicability definitions for Subcategory E unchanged.
EPA is proposing revised limitations and new pretreatment standards for facilities in the following MPP subcategories: Meat Cutters (Subcategory F), Sausage and Luncheon Meats Processors (Subcategory G), Ham Processors (Subcategory H), and Canned Meats Processors (Subcategory I). Subcategories F-I are currently defined based on a production rate greater than 6,000 pounds per day (2.19 million pounds per year), and EPA proposes to leave the definitions for these subcategories unchanged. However, EPA proposes to apply effluent limitations to a subset of these subcategories based on production thresholds, which could change under the proposed regulatory options.
EPA is also proposing retaining the Renderer (Subcategory J) subcategory and revising the limitations and proposing new pretreatment standards for facilities in this subcategory. EPA proposes to leave the applicability definitions for Renderers (Subcategory J) unchanged as facilities using raw material at rates greater than 10 million pounds per year. However, EPA proposes to apply effluent limitations to a subset of these subcategories based on production thresholds, which could change under the proposed regulatory options.
EPA is proposing establishing revised limitations and new pretreatment standards for facilities in the poultry subcategories. The poultry subcategories (Subcategory K, Poultry First Processing and Subcategory L, Poultry Further Processing) are not defined based on production and EPA proposes to leave the applicability definitions unchanged. However, EPA proposes to apply effluent limitations to a subset of these subcategories based on production thresholds, which could change under the proposed regulatory options.
In summary, EPA is retaining the existing subcategories and proposing revisions to applicable effluent limitations and addition of new pretreatment standards for most of these subcategories. The proposed ELGs apply to subsets of facilities in each subcategory based on production thresholds. In establishing the original ELGs for this industry and in the 2004 revisions, EPA broke the industry down into subcategories with similar characteristics. This breakdown recognized the major differences among companies within the industry, which might reflect, for example, different processes or economies of scale. Subdividing an industry into subcategories results in more tailored regulatory standards, thereby increasing regulatory predictability and diminishing the need to address variations among facilities through a variance process (
In addition to some specific requests for comment included throughout this proposal, EPA solicits comment on all aspects of this proposal, including the information, data, and assumptions EPA relied upon to develop the three regulatory options, as well as the proposed effluent limitations and pretreatment standards for existing and new facilities, and additional provisions (see Section F below) included in this proposal.
Considering the statutory criteria and factors described in Section IV above, EPA proposes to revise the ELGs based on BPT, BCT, BAT, PSES, PSNS, and BADCT (for NSPS) based on the technologies described in its preferred Option 1. EPA also solicits comment on the other proposed options (Options 2 and 3), and any other permutation of these options, although they are not the preferred option in this proposed rule for the reasons discussed in section VII. E below.
As described in section IV, the CWA defines two increasingly stringent levels of control to be used for developing limits for classes of pollutants and specifies factors that need to be considered. BPT is the first level of control and applies to all pollutants
BAT represents the second level of control for toxic and non-conventional pollutants such as nitrogen and phosphorus. In setting BAT, EPA uses not the “average” plant, but rather the “single best performing plant” in the industry (
Under the preferred Option 1, for direct dischargers, EPA proposes to revise BPT/BAT for nitrogen and phosphorus and BPT/BCT for fecal coliform. For indirect dischargers, EPA proposes to establish PSES and PSNS based on BPT/BCT for TSS, BOD, and oil & grease.
For direct dischargers, EPA proposes BAT effluent limitations for nitrogen based on biological treatment to achieve full denitrification and BAT effluent limitations for phosphorus based on biological treatment with chemical precipitation with filtration. After considering the factors specified in CWA section 304(b)(2)(B) (33 U.S.C. 1314(b)(2)(B)), EPA proposes to find that this technology is technologically available, economically achievable, and has acceptable non-water quality environmental impacts.
“In setting BAT, EPA uses not the average plant, but the optimally operating plant, the pilot plant which acts as a beacon to show what is possible” (
EPA proposes to find that the proposed BAT effluent limitations for total nitrogen and total phosphorus under the preferred Option 1 are economically achievable. Courts have interpreted economic achievability to mean that the cost of the regulations can be “reasonably borne” by the industry as a whole (
EPA assesses economic achievability using two primary approaches. The main approach is to use a discounted cash flow analysis to predict the number of possible closures resulting from implementation of the regulatory option. The closure analysis compares the future costs of compliance to the facility's estimated future earnings during the same period. For this analysis, EPA is considering a facility that shows positive future earnings without the rule and negative future earnings with the rule (regardless of magnitude of the earnings) to be a potential closure. EPA often also uses a simple financial screening analysis to compare facility compliance cost-to-revenue (CTR), in order to assess the relative magnitude of the economic impacts to each facility. The higher the ratio of cost to revenue, the greater the potential impact on the facility. Facilities experiencing significant economic impacts may, among other possibilities, reduce production levels, make changes to production and facility operations, forgo future expansion, or close. A cost-to-revenue analysis does not predict these responses but is a reasonable way to assess the likelihood of these types of impacts. On the other hand, some indirect facilities, depending on how their utility fees are structured, may incur lower payments to the receiving POTW due to lower pollutant loads being sent to the POTW.
EPA proposes to find that the preferred Option 1 is economically achievable in terms of affordability to the industry as a whole because results from both the BAT analysis of potential closures and the BAT CTR analysis show that potential closures and financial impacts are limited to a single facility that accounts for approximately one percent of discharging facilities and less than one percent (0.02 percent) of the total universe of MPP facilities. See Section VIII and the Cost and Economic Impact Screening Analyses and the Facility Closure Analysis sections of the RIA for more detailed results. Additionally, EPA also performed a market analysis that estimates the proposed Option 1 would change market prices for major meat and poultry commodities by less than a tenth of a percent. See the Market Impact Analysis section of the RIA for more detailed results.
The annualized social cost of the preferred option is $232 million and $227 million using a three percent and seven percent discount rate respectively. The total cost of a rulemaking does not in and of itself inform the Agency about its impact to the industry as a whole without understanding the economic conditions of that industry. For example, an industry with total annual sales of only $20 to $30 billion might experience disruptions due to annual costs of this magnitude. However, the MPP industry, as classified under NAICS 3116, is a relatively large industry. The American Survey of Manufacturers estimates that total sales for the industry in 2021 were $267 billion.
EPA proposes to find that the non-water quality environmental impacts of the preferred Option 1 (full denitrification, chemical phosphorus removal, and filtering) are acceptable. For further discussion of these impacts, see Section X.
EPA's preferred Option 1 for direct dischargers, which EPA estimates would require 125 of 171 total direct dischargers to install additional wastewater controls, would add an estimated additional 78,989 MWh of demand to the U.S. power grid. This would increase the total power demand of the U.S. by 0.0000019 percent, based on the U.S. generating 4,108 billion MWh in 2021 nationwide (EIA, 2021).
To control pollutants discharged by indirect discharging facilities, EPA establishes categorical pretreatment standards for existing sources (PSES) and for new sources (PSNS). Before establishing PSES/PSNS for a pollutant, EPA examines whether the pollutant “passes through” a POTW or interferes with the POTW operation or sludge disposal practices. In determining whether a pollutant passes through POTWs for these purposes, EPA typically compares the percentage of a pollutant removed by well-operated
The
After considering all the relevant statutory factors and wastewater technologies presented in this preamble and the TDD, EPA is not proposing to establish pretreatment standards (PSES/PSNS) for nitrogen and phosphorus removal for indirect dischargers under its preferred Option 1 for the reasons discussed in Section VII.E below. However, EPA is soliciting comment on the other proposed regulatory options (Options 2 and 3) and any other regulatory options that would include such pretreatment standards for nutrients (See Section VII.D below).
Under preferred Option 1, EPA proposes to establish PSES based on the BPT level of control for conventional pollutants (BOD, TSS, oil & grease) based on screening and DAF technologies. After considering all the relevant factors and wastewater technologies presented in this preamble and in the TDD, EPA proposes to find that this technology is available, imposes costs that are not wholly disproportionate to effluent reduction benefits, and has acceptable non-water quality environmental impacts.
Courts have interpreted BPT to represent the “average of the best” performance (
Caselaw and the CWA's legislative history indicate that to revise BPT, EPA is to employ a limited cost-benefit balancing test, applying controls unless the costs are wholly disproportionate to the effluent reduction benefits (
The record supports that removal of conventional pollutants under the preferred Option 1 would have acceptable non-water quality environmental impacts, including energy requirements (see Section X of this preamble).
EPA's preferred Option 1 includes removal of the conventional pollutants BOD, oil & grease, and TSS from the meat and poultry facility's discharge before sending it to the POTW for further treatment. Under Option 1, 719 out of 3,708 indirect discharging facilities would incur an estimated 1,699 MWh of energy demand. Although most of this energy demand would be a shift from the POTW to the MPP facility, some portion of this could result in an additional energy demand to the U.S. power grid. This total power demand under preferred Option 1 is 0.000000041 percent of the U.S. power generation (based on 4,108 billion MWh in 2021 nationwide), which EPA proposes to find is acceptable (EIA, 2021).
EPA also evaluated the applicability of the statutory factors with respect to the other regulatory options proposed (Options 2 and 3), although EPA is not proposing these as the preferred option for the reasons discussed in Section VII.E below. With respect to technological availability, the technologies assessed for Options 2 and 3 are widely used in municipal wastewater treatment in the U.S. and around the world. The record supports that such technologies are available in that they effectively remove the pollutants addressed in this rulemaking. However, there may be constraints on availability of nutrient removal technologies with respect to indirect dischargers (as discussed in Section VII.E below), and EPA solicits information about such potential constraints. With respect to the statutory cost tests for BPT, BCT and BAT for Options 2 and 3, see Section VIII below. EPA's comparison of costs to benefits of the proposed BPT/BCT limitations under those options would historically support a finding that the costs are not “wholly disproportionate” to the benefits. Similarly, the possible facility closures and cost to revenue ratio of the proposed BAT limitations are within the range of impacts that EPA has historically considered to be economically achievable, as required by CWA section 301(b)(2)(A) (33 U.S.C. 1311(b)(2)(A)). EPA reasonably considered impacts on small businesses in setting production thresholds for applicability based on avoiding cost to revenue ratios indicating likelihood of economic impacts, as identified in the Regulatory Flexibility Analysis guidance (CWA section 304(b)(2)(B), authorizing consideration of “such other factors as the Administrator deems appropriate” in establishing BAT). With respect to non-water quality environmental impacts of the BPT/BCT and BAT technologies under Options 2 and 3, see Section X below. EPA solicits comment on whether these proposed options—or other regulatory options based on different production thresholds or technologies—would meet the applicable statutory factors and should form the basis of any final rule.
As discussed above, EPA considered two proposed options (Options 2 and 3) that would be more expansive than Option 1. EPA did not select these as the preferred option due to several potential concerns. First, EPA is concerned that the more expansive options may impede the Biden Administration's initiatives to expand independent meat and poultry processing capacity and enhance the resilience of the food supply chain, as reflected in Executive Order (E.O.) 14036 (July 9, 2021). This is a crucial Administration priority to protect against the type of supply chain disruptions that arose during the COVID-19 pandemic. In issuing the E.O., the Administration explained that without such diversification, “our food supply chains are susceptible to shocks,” and that “[w]hen COVID-19 or other disasters such as fires or cyberattacks shutter a plant, many ranchers have no other place to take their animals” See
Relative to many other industries regulated by ELGs, the MPP industry plays a critical role in the nation's food supply chain. The supply chain disruptions during the COVID-19 pandemic highlighted the problems with the consolidation of the industry over the last 50 years and how susceptible it is to shocks. The pandemic disrupted both the market supply and demand patterns typically observed. As the demand for meat and poultry from restaurants declined dramatically in response to the public lock down efforts, the demand for meat from grocery stores and on-line sources rose.
EPA's analysis showed Options 2 and 3 have more potential facility closures than Option 1 due to the requirements imposed on additional facilities, thus potentially harming the Administration's priority to expand and diversify the meat and poultry processing industry. For this reason, EPA is selecting Option 1 as the preferred proposed option at this time, rather than more expansive options, as it would allow the Agency to achieve significant reductions in nutrients and conventional pollutants in a way that avoids potential supply chain disruptions in the nation's food supply, consistent with the policy direction in the E.O. While EPA's analysis shows Option 1 may result in 16 possible facility closures, this represents 0.03 percent of total industry facilities, and thus, any supply chain disruptions from such possible closures would be minimal, temporary and localized. In addition, the forecasted change in industry production levels due to the preferred Option 1 is estimated to be only 0.01 percent. By comparison, EPA's analysis shows that potential facility closures would be 22 under Option 2 and 53 under Option 3, supporting EPA's selection of Option 1 as the preferred proposed option. See the Other Economic Factors section of the RIA for a more in-depth discussion of this issue.
The CWA gives EPA authority to consider these policy concerns in determining BAT (CWA section 304(b)(2)(B) (authorizing consideration of “such other factors as the Administrator deems appropriate” in assessing BAT);
At the same time, EPA intends to consider any impact of federal financial assistance on wastewater treatment upgrades at these facilities. EPA seeks comment on whether other federal funds or other programs could reduce or minimize potential impacts of the more expansive options on the Administration's efforts to support the meat and poultry supply chain.
EPA has also heard from small entity representatives (SERs) during EPA's SBREFA panel process (
EPA also heard from SERs concern about the availability of nutrient control technologies for indirect dischargers under Options 2 and 3 due to ongoing supply chain issues and labor shortages in the wastewater treatment industry. While these technologies are widely available and have been used in many industrial and municipal wastewater treatment facilities across the country to remove nutrients, SERs have raised concerns about the timing of such availability. The amount of a good supplied for a market can take time to adjust to a sudden large increase in demand. In addition, if there is a temporary spike in demand resulting from many facilities needing to come into compliance at the same time, there may not be an incentive for the companies that make and install these technologies to increase their long-term capacity. Given the large number of indirect facilities that would need to install new nutrient removing treatment technologies under Options 2 and 3, there is a potential for implementation delays. These implementation delays could result in facilities operating out of compliance or temporarily closing until they are able to get the new control technology in place. See the Other Economic Factors Section of the RIA for a more in-depth discussion of this issue.
Given the large number of indirect discharging facilities that would likely need to install nutrient removal technologies under Options 2 and 3, and the ongoing supply chain issues, it is not clear whether these technologies will be available in sufficient quantity to allow for installation within the three-year statutory timeframe for pretreatment standards under CWA section 307(b) (33 U.S.C 1317(b)). EPA solicits additional information about production capacity for nutrient control technologies in the industry, given that the Nation is currently in the process of significant investments in water infrastructure as part of the Bipartisan Infrastructure Law.
In addition, EPA is considering whether there are compliance flexibilities for indirect discharging facilities that would allow for additional time beyond the three-year statutory timeframe in CWA section 307(b) (33 U.S.C. 1317(b)), in light of potential concerns about availability of technology due to supply chain issues. EPA solicits comment on how it could implement new pretreatment standards consistent with this provision recognizing that there could be supply chain issues preventing facilities from installing the treatment technologies. For example, one option could be to allow phased implementation based on size thresholds, whereby larger facilities would be required to install such technologies within three years of the effective date of the rule, while smaller facilities would be allowed additional time to install such technologies, based on a demonstration that the facility is contractually bound to procure the technology within a specified time of the effective date. EPA solicits comment on such an approach, or other implementation flexibilities for indirect discharging facilities, should the Agency decide to finalize a rule based on a more expansive option than the preferred Option 1.
Should the Agency decide to promulgate a rule based on a more expansive option, EPA is considering conditional limits under these options (see Section VII.F) to reduce costs and eliminate the need for redundant treatment. To better understand the potential use of such conditional limits, EPA solicits information about how many POTWs that receive MPP wastewater have nitrogen and phosphorus removal technologies that could provide an equivalent level of treatment, and whether such flexibilities may result in significant cost savings, including any relevant data on incremental cost savings or other benefits.
EPA has also heard from industry representatives that since nitrification/denitrification technologies also remove organic pollutants (as measured by BOD
In addition to seeking comment on the three proposed regulatory options, EPA solicits public comment on three additional provisions that would apply with respect to some of these options: First, with respect to the pretreatment standards for nitrogen and phosphorus that would apply to indirect dischargers under Options 2 and 3, EPA solicits comment on a provision that would allow an exemption from these limits for indirect discharging MPP facilities discharging to POTWs that provide equivalent nutrient removal as would be required under the proposed PSES/PSNS. Such “conditional limits” have been used in previous ELGs, such as the Iron and Steel Manufacturing Effluent Guidelines (40 CFR 420.15). EPA is considering including such a provision in any final rule that would contain nutrient pretreatment standards (such as under Options 2 or 3) because nitrogen and phosphorus removal technologies involve more costly, advanced treatment than is required for conventional pollutants and some facilities have already shared costs to upgrade their receiving POTW to remove nutrients to meet Water Quality Based Effluent
Second, EPA solicits comment on including
Third, EPA solicits comment on including BAT/NSPS/PSES/PSNS chloride limits for certain wastestreams to remove salts from facility discharges in any final rule based on BAT. In the meat processing industry, salts may be used in further processing and for water softening purposes. The presence of chlorides in discharges to surface waters can adversely affect aquatic organisms because of their sensitivity to concentrations of salt. A review of chlorides data in 2021 discharge monitoring reports from ICIS-NPDES showed about 70 percent of MPP facilities are discharging wastewater with chloride concentrations exceeding ambient water quality criteria of 230 mg/L and secondary drinking water standards of 250 mg/L (the reported 70th percentile of these data was 254 mg/L). Although removing salt is difficult and can be expensive, and therefore treating the whole wastewater effluent may not be the most efficient way to control chlorides, some facilities have certain operations with process wastewater that is kept separate from the main waste stream. These processes include hide processing, water softening regeneration wastewater, meat and poultry koshering, and further processing operations involving marinating and curing. Segregation and treatment of these process wastestreams is currently in place at some MPP facilities. Segregation and management of these high chloride wastestreams could result in targeted reductions of up to 477 million pounds of salt discharges annually at a cost of $172 million annually if applied to 466 facilities under Options 1, 2 and 3.
EPA is considering salt recycle/evaporation systems as the technology basis for establishing BAT/NSPS/PSES/PSNS limitations to control chlorides discharged in high chlorides waste streams in any final rule. EPA is considering effluent limitations for chlorides for direct and indirect discharging facilities in any subcategory with production greater than 5 million pounds per year with high chlorides processes. Analysis indicates that these technologies may be available, economically achievable, and have acceptable non-water quality environmental impacts. See section 12 of the TDD for additional details on the non-water quality environmental impacts of this provision. EPA is not including this provision as part of the preferred option in today's proposal, but rather is soliciting comment on including such a provision in any final rule. In particular, EPA solicits comment on the potential costs of such a provision, and specifically on the cost methodology and results contained in the TDD.
Although this proposed rule would not have a significant economic impact on a substantial number of small entities, EPA nonetheless has tried to reduce the impact of this proposed rule on small entities and completed the Small Business Advocacy Review (SBAR) panel to take input from small entities. EPA's proposed preferred option would not expand applicability to smaller direct discharging facilities, but it would propose first-ever national pretreatment standards for indirect discharging facilities. EPA's analysis (see Section VIII) shows that Option 1 would apply to 96 small firms. This section discusses the 5 recommendations from the SBAR panel.
EPA recognizes that under all options considered some facilities will be subject to pretreatment standards and/or categorical discharge standards for the first time, and therefore, may not be familiar with certain aspects of NPDES permitting and/or pretreatment standards. EPA also heard concerns during the SBAR panel outreach meetings with SERs specifically related to a lack of familiarity with effluent guidelines and pretreatment standards. One of the five recommendations was for EPA therefore to solicit comments on what information small facilities would find beneficial (
EPA also heard from SERs about concerns related to production thresholds for applicability of the ELGs. While EPA's proposed regulatory
Under Options 2 and 3, EPA is considering conditional limits for facilities that discharge to POTWs with nitrogen and phosphorus limits and treatment capabilities equivalent to the treatment that would be needed to comply with any new proposed requirements. For these indirect discharging facilities, with documentation and approval by the POTW/control authority, the MPP facilities would not need to treat the wastewater for nitrogen and phosphorus before discharging to the POTW. A fourth Panel recommendation that EPA also requests comment on is the inclusion of conditional limits, and specifically what documentation and approval by the POTW/control authority would be sufficient to establish conditional limits as a compliance mechanism.
The fifth recommendation was for EPA to consider and take comment on a longer or flexible timeline for small entities to meet proposed regulations. EPA requests comment from small entities on what kind of timeline flexibilities would be helpful. See the SBREFA panel report for additional details regarding these and other considerations that were raised by SERs (USEPA. 2023. DCN MP00347).
This section provides an overview of the methodology EPA used to assess the costs and the economic impacts of the three options considered in the proposed rule and summarizes the results of these analyses. EPA separately assessed the cost and economic impacts of the BPT, BCT, and BAT requirements for each regulatory option proposed. Then EPA assessed the combined economic effects of all BPT, BCT, and BAT requirements for each option for purposes of implementing the Regulatory Impact Analysis required by E.O. See the RIA and supporting information in the docket for additional detail. The proposed rule would revise BPT for conventional pollutants and consider whether more stringent BCT limits pass the two-part BCT cost test (51 FR 24974 (July 9,1986)). For BPT, EPA performed a “wholly disproportionate” cost test for all direct and indirect discharging facilities that would be required to control conventional pollutants under the three proposed options. For BCT, EPA evaluated the reasonableness of BCT candidate technologies—those that remove more conventional pollutants than BPT—by applying a two-part cost test. The two-part “cost reasonableness” test requires: (1) The cost per pound of conventional pollutant removed by dischargers in upgrading from BPT limits to the candidate BCT option must be less than the cost per pound of conventional pollutant removal by upgrading POTWs from secondary treatment to advanced secondary treatment (“the POTW test”); and (2) an assessment of industry costs per pound removed in upgrading from BPT to BCT relative to the costs per pound removed in going from no treatment to BPT, followed by a comparison of that ratio to the analogous ratio for POTWs (“the industry cost effectiveness test”). The industry ratio must be less than the POTW ratio to pass the test.
The proposed rule would also revise BAT for non-conventional pollutants (nitrogen and phosphorus). EPA assessed the economic achievability of BAT for all direct and indirect facilities that would have requirements for non-conventional pollutants under the proposed options. In developing ELGs reflecting BAT, and as required by CWA section 301(b)(2)(A) (33 U.S.C. 1311(b)(2)(A)), EPA evaluates the economic achievability of the regulatory options to assess the impacts of applying the limitations and standards to the industry as a whole, which typically includes an assessment of incremental facility closures attributable to a regulatory option. As described in more detail below, this proposed ELG is expected to result in incremental costs when compared to baseline operations for many facilities. The cost and economic impact analysis for this proposed rulemaking focuses on understanding the magnitude and distribution of compliance costs across the industry and the broader market impacts. EPA used indicators to assess the impacts of the three regulatory options on the MPP industry. EPA considered the total cost to industry and change in the number and capacity of specific facilities expected to close under the proposed option, as well as the other options considered, compared to baseline. EPA also analyzed the ratio of compliance costs to revenue to see how the three options would change the number of plants and their owning entities that exceed thresholds indicating potential financial strain. In addition to the analyses supporting the economic achievability of the regulatory options, EPA conducted other analyses to (1) characterize other potential impacts of the regulatory options (
EPA estimated facility-specific costs and loads for two levels of treatment technology reflected in the regulatory options developed. The first level of treatment was the use of DAF technology. This level of technology is already in place for direct discharging facilities reflecting the existing rule BPT, BCT and BAT requirements but would be a new requirement for indirect discharging facilities. The CWA requires that the EPA consider “the total cost of application of technology in relation to the effluent reduction benefits to be achieved from such application,” and these costs should not be wholly disproportionate to the corresponding effluent reduction benefits. As the U.S. Court of Appeals for the Fifth Circuit stated, “The courts of appeal have consistently held that Congress intended section 304(b) to give the EPA broad discretion in considering the cost of pollution abatement in relation to its benefits and to preclude the EPA from giving the cost of compliance primary importance” (
Table VIII-1 presents the annualized after-tax technology costs and associated pollutant load reductions for individual subcategories of facilities and the industry as a whole. Although BPT applies to both conventional and nonconventional pollutants, DAF technology is primarily employed to address conventional pollutants, so only conventional pollutant reductions are shown. Load reductions reflect the change in pollutants being discharged from regulated facilities to their receiving POTWs. The table demonstrates that under BPT, there would be significant reductions in conventional pollutant loading for each subcategory and the industry as a
In July 1986, EPA explained how it developed its methodology for setting effluent limitations based on BCT (51 FR 24974). EPA evaluates the reasonableness of BCT candidate technologies—those that remove more conventional pollutants than BPT—by applying a two-part cost test: a POTW test and an industry cost-effectiveness test.
EPA first calculates the cost per pound of conventional pollutant removed by industrial dischargers in upgrading from BPT to a BCT candidate technology, and then compares this cost to the cost per pound of conventional pollutants removed in upgrading POTWs to advanced secondary treatment (
For purposes of this analysis, for the preferred Option 1, EPA compared the cost of upgrading from the candidate BPT (based on screens followed with DAF technology for 720 large indirect facilities) to BCT (based on biological treatment to achieve full denitrification and chemical precipitation with filtration as described for BAT in Section VII C.1). The cost for these 719 facilities to upgrade from candidate BPT to candidate BCT would range from $0.26 to $1.32 per pound of pollutant removed depending on the subcategory. Option 2 involves the same 719 facilities receiving conventional pollutant removal technology; thus, the cost and results of this test would be the same as Option 1. Option 3 would require 1,485 indirect facilities to implement conventional pollutant removal technology, and the cost for these facilities to upgrade from candidate BPT to candidate BCT would range from $0.30 to $1.03 per pound of pollutant removed depending on the subcategory. The section 9 of the TDD provides more details on the calculations of the BCT cost tests.
In developing BCT limits, EPA considered whether there are technologies that achieve greater removals of conventional pollutants than the candidate for BPT, and whether those technologies are cost-reasonable according to the prescribed BCT tests. For Subcategories A through D, F through J, K, and L, EPA identified technologies that can achieve greater removals of conventional pollutants than the candidate BPT standards; however, this technology is full treatment (based on screening/grit removal, DAF, anaerobic lagoon, biological treatment, chemical phosphorus removal, sand filter, and solids handling), and EPA proposes to find that it does not pass the BCT cost test under any of the proposed options. Furthermore, since these limits are for indirect dischargers that send their wastewater to POTWs, and POTWs are designed to remove BOD, TSS, and oil & grease, EPA considers screens with DAF treatment an appropriate pretreatment technology for PSES/PSNS. Accordingly, EPA proposes to establish BCT effluent limitations equal to the candidate BPT limitations based on screens followed with DAF for indirect dischargers in these subcategories.
For the second level of treatment for toxic and non-conventional pollutants, direct dischargers must meet BAT, and
Estimates of possible facility closures are the traditional way EPA considers economic achievability. A discounted cash-flow analysis was performed on detailed questionnaire respondents and the results were then extrapolated to all facilities incurring costs under each option. For more information on this approach, see the RIA. Table VIII-2 shows the number of facilities with BAT costs and the estimated possible closures by production subcategory for each option. The table also shows the relative percentage of facilities with costs and total discharging facilities that are estimated to close. EPA estimated that the preferred Option 1 would have only a single possible closure and proposes to find that this would be considered economically achievable under any reasonable measure of impacts. Under Options 2 and 3 EPA estimated that there are 19 and 29 total possible closures, respectively. This equates to 7 percent of the 269 facilities with BAT costs under Option 2, and 3 percent of the 913 facilities with BAT costs under Option 3. However, to understand the economic impact of these options on the industry it is necessary to consider these possible closures within the context of the total number of industry facilities. Neither Options 2 nor 3 have estimated potential closures that exceed 1 percent of the 3,897 discharging facilities. If the zero discharge facilities were also factored in, these percentages would be smaller still. These two options were developed to limit BAT requirements to just the larger discharging facilities that tend to be better able to afford the nutrient reduction technologies. EPA solicits comment on whether Options 2 and 3 would be economically achievable for the industry as a whole, based on the level of possible facility closures reflected in the table below.
To assess the economic achievability of BAT technologies, EPA also compared facility level costs to estimated revenue to screen for potential financial impacts to facilities. EPA considered total facility costs relative to industry sales, the number of facilities that have costs greater than 1 percent and 3 percent of revenue, and the number of potential facility closures. The next level of control beyond BPT is not feasible for facilities unless the BPT technology is in place, so EPA conservatively assessed both the costs of BAT assuming BPT is in place, called “incremental,” and the costs including both costs to meet revised BPT and the revised BAT, called “additive” costs of BAT technologies. Table VIII-3 shows the incremental and additive BAT costs for each of the three options and the percentage of annual industry sales these costs comprise.
The difference between the incremental and Additive (BPT+BAT) costs are small, which reflects the relatively small cost of the DAF technology compared to the more expensive nutrient removal technologies. For assessing economic achievability, EPA is considering the additive BAT costs. Table VIII-4 shows these full BAT costs broken out by production sub-categories.
Under the Agency's Regulatory Flexibility Act Guidance for assessing impacts of EPA actions on small entities (
Tables VIII-5, VIII-6, and VIII-7 show the number of facilities that have BAT CTR ratios that fall into the three above mentioned categories for each option. To provide context for these numbers, the tables display the percentage of facilities that fall into each group, by all facilities incurring cost and by all discharging facilities. For all options, the percentage of discharging facilities with a higher probability of financial impacts is less than one. When considering subcategories, all production types have less than one percent of discharging facilities in the higher-probability category, except for poultry slaughter which has 2.1 percent and 2.5 percent of discharging facilities in this category under options 2 and 3 respectively.
The CTR analysis shows that under Option 1 the BAT costs would be less than 1 percent of revenue for 99.9 percent of discharging facilities, and, per RFA guidance, would be unlikely to face economic impacts. Therefore, EPA proposes to find that Option 1 is economically achievable for the industry as a whole. Given that the BAT
Sections A, B, and C above address the CWA requirements for determining BPT, BCT, and BAT. Economic effects of each of these technology levels was considered in isolation. This section presents the aggregate costs and impacts of each of the three options on regulated facilities. These analyses cover both facility-level and firm-level effects, employment effects, and market-level effects.
Estimating the potential closures of existing facilities is the traditional way EPA assesses economic achievability under the CWA. This analysis is based first on financial data reported in the detailed questionnaire, and then extrapolated to the larger universe of facilities based on relevant facility financial and production characteristics.
Under the preferred Option 1, EPA estimated that 16 facilities would potentially close. Under Option 2, EPA estimated that 22 facilities would potentially close. Under Option 3, EPA estimated that 53 facilities would potentially close. This corresponds respectively to 0.3 percent, 0.4 percent, and 1.0 percent of all facilities (including zero discharge facilities). Chapter 5 in the RIA provides more detailed results for the three regulatory options EPA analyzed. Table VIII-8 presents the results of the facility closure analysis.
Rather than close the facility, some firms may decide to reduce facility production levels to be below the production size thresholds included in each of the options. Although they would be avoiding compliance costs, they would incur the opportunity costs of forgone net revenues. Firms may choose this approach if it is seen as less economically burdensome than the regulatory cost of compliance. This approach is not costed because EPA assumes that it would only be chosen by the firm if it is less costly. However, reducing production to avoid compliance, if chosen by enough facilities could have a measurable effect on industry production. This potential change in quantity produced is different than the quantity effects discussed in the following market analysis. The potential costs of regulatory compliance could also affect future decisions to expand production at those existing facilities that currently produce below the threshold production levels that are part of each of the regulatory options.
EPA conducted a screening-level analysis of each regulatory option's potential impact on discharging MPP facilities and parent entities based on cost-to-revenue ratios. For each of the two levels of analysis (facility and parent entity), the Agency assumed, for analytic convenience and as a worst-case scenario, that none of the compliance costs would be passed on to retailers or back to producers (farmers) and would instead be absorbed by the processing facilities and their parent entities. This assumption overstates the impacts of projected compliance expenditures on a facility since it is more realistic to assume that a portion of these costs in most all cases may be passed up and down the supply chain resulting in small incremental cost increases to producers and consumers. It is, however, a reasonable assumption for a screening-level estimate of the potential cost impacts.
EPA used reported revenue estimates in the detailed surveys responses. EPA estimated revenue using reported annual production multiplied by the average revenue per unit of production from the detailed questionnaire for facilities producing the same output type,
Under the preferred Option 1, EPA estimated that seven facilities (0.18 percent of total dischargers) would incur incremental costs greater than or equal to one percent of revenue, including two facilities that have costs greater than or equal to three percent of revenue, and an additional 838 facilities would incur costs that are less than one percent of revenue. Under Option 2, EPA estimated that 17 (0.44 percent of total dischargers) facilities would incur incremental costs greater than or equal to one percent of revenue, including five facilities that have costs greater than or equal to three percent of revenue, and an additional 828 facilities would incur costs that are less than one percent of revenue. Under Option 3, EPA estimated that 44 facilities (1.13 percent of total dischargers) would incur incremental costs greater than or equal to 1 percent of revenue, including 13 facilities that have costs greater than or equal to three percent of revenue, and an additional 1,578 facilities would incur costs that are less than 1 percent of revenue. For each of these three options, the remaining discharging facilities would incur no costs. Chapter 4 in the RIA provides more detailed results for the three regulatory options EPA analyzed.
EPA also assessed the economic impact of the regulatory options at the parent entity level. The screening-level cost-to-revenue analysis at the parent entity level provides insight on the impact on those entities that own one or more MPP facilities. In this analysis, the domestic parent entity associated with a given facility is defined as the entity with the largest ownership share in the facility. For each parent entity or firm, EPA compared the incremental change in the total annualized after-tax costs and the total revenue for the entity to baseline (see Chapter 4 of the RIA for details). EPA based ownership and annual revenues directly on questionnaire responses for those facilities that completed detailed questionnaires. Ownership was also based on questionnaire responses. Revenue information, however, was based on external sources of financial information, mentioned above. Where questionnaire responses were not available, ownership and firm revenue information were based on matching these facilities with firms contained in the external firm data (Hoovers D&B) that have reported business activity under NAICS category 3116. For facilities where a match could not be made, facilities were assumed to be owned by a firm that owned no other businesses and has no other sources of revenue. This assumption likely leads to an overestimation of the cost-to revenue ratio for many of these entities that may also have additional sources of revenue. Table VIII-10 provides firm-level cost-to-revenue results.
Like the facility-level analysis above, cost-to-revenue ratios provide screening-level indicators of potential economic impacts, this time to the owning entities; higher ratios suggest a higher probability of economic impacts. EPA estimates that the number of entities owning existing MPP facilities to be 4,127 firms. Under the proposed rule Option 1, there would be 3,730 firms with no costs and 394 with costs less than one percent of revenue. EPA estimates that three firms would incur incremental costs greater than or equal to one percent of revenue and less than three percent of revenue. No firms are expected to incur costs greater than or equal to three percent of revenue. Under Option 2, there would be 3,730 firms with no costs and 393 with costs less than 1 percent of revenue. EPA estimates that four firms would incur incremental costs greater than or equal to 1 percent of revenue and only one of these would incur costs greater than or equal to 3 percent of revenue. Under Option 3, there would be 3,129 firms with no costs and 980 with costs less than 1 percent of revenue. EPA estimates that 18 firms would incur incremental costs greater than or equal to 1 percent of revenue and, of these, four would incur costs greater than or equal to 3 percent of revenue. Chapter 4 in the RIA provides more detailed results for the three regulatory options EPA analyzed.
Under the Regulatory Flexibility Act (RFA) and Small Business Regulatory Enforcement Fairness Act (SBREFA), EPA is required to estimate the potential economic impacts of the rule on small businesses. The definition of small business varies by NAICS categories and for this industrial category the definition is based on employment levels provided in Table VIII-11 below. Firm employment levels are based on questionnaire responses when available. For non-respondents, firm employment estimates from Hoovers D&B are used if the firm was matched to one or more facilities. For remaining firms USDA facility inspection data employment categories for facilities are used to estimate if the owners are a small business. For more information on this approach see the SBREFA screening analysis section of the RIA.
For each of the three options, EPA estimated the number of small parent entities that incur annual compliance costs that fall into one of three categories: less than 1 percent of annual revenue; between 1 percent and less than 3 percent of annual revenue; and 3 percent or more of annual revenue. Table VIII-12 presents the results of the CTR test for all small entities that own MPP dischargers. Table VIII-13 shows aggregate revenue and cost for small firms by process type. EPA conservatively assumes that entities with an unidentified size are large. While this assumption potentially reduces the number of identified small entities, it provides a conservative estimate of the percentage of small entities with impacts, since none of the entities with an unidentified size have a CTR ratio greater than one percent under any of the regulatory options.
The results from the Small Firm-Level CTR Screening Analysis demonstrate that there is not a significant financial burden on a substantial number of small firms that own MPP facilities. Likewise, the results also show that small firms do not bear a disproportionate financial burden relative to large firms. These results demonstrate that the use of facility production size thresholds for each of the three options ensures that
The analyses thus far have focused either at the individual facility or firm level but have not directly addressed the cumulative effects of the rule options. EPA examined the effects of the regulatory options on the national markets for beef, pork, chicken, and turkey. EPA developed linear domestic and trade demand and supply equations for each meat product based on price elasticities from USDA data and other published sources. To estimate the impacts of the regulatory options, the domestic supply curves were adjusted to incorporate the after-tax annualized compliance costs incurred by producers in each meat product market, causing a shift in each supply curve and a decrease in domestic supply. After estimating the post-regulatory equilibrium for each meat product market, market-level impacts on prices and quantities were estimated. Tables VIII-14 and VIII-15 provide the percentage change in quantity and prices respectively for each meat product and rule option combination. The overall effects on meat product supplies and prices are sufficiently small under all three options that they are unlikely to have a noticeable effect on producer or consumer behavior. For more information on the market analysis methodology and results see Chapter 6 of the RIA.
In addition to addressing the costs and impacts of the regulatory options, EPA estimated the potential impacts of this rulemaking on employment. Employment effects can be both positive and negative as well as temporary or permanent. The employment analyses performed for the proposed rule measure labor changes in terms of full time equivalent (FTE) labor inputs. EPA measures the short-term employment effects directly due to estimated closures as well as the long-term employment effects from changes in production levels at the new market equilibrium. Employment loss due to facility closures is considered transitory as some of the production that occurred at these facilities will quickly move to other facilities with spare capacity. Eventually new and expanding existing facilities will take on much of the remaining production that would have occurred at the closed facilities. As these shifts in production occur so too will employment opportunities.
Closures are not the only rule impact affecting employment. As just described in the preceding market analysis section, overall production is likely to go down slightly once the markets for meat products reach a new equilibrium of supply and demand. Lower production levels would likely result in long-term job losses. The number of long-term possible job losses across the whole industry due to decreased production are 65, 161, and 339 for options 1, 2, and 3 respectively. Relative to the total industry employment levels, these job losses translate to 0.0002 percent, 0.001 percent, and 0.0032 percent, respectively. The annual operation and maintenance costs for the new treatment technologies include labor costs, based on typical dollar per hour wage rates for the industry. These labor hours can be used to estimate the additional employees necessary to operate and maintain the treatment technologies. These new jobs more than offset those lost due to lower production levels for all three options, resulting in a net gain of 166, 669, and 1,603 jobs respectively. Table VIII-16 presents the possible short-term and long-term employment impacts of the three regulatory options being considered. For more on the employment analyses see Chapter 7 of the RIA.
EPA is taking comment on the inclusion of chlorides removal limits. EPA is considering establishing a zero discharge of pollutants requirement for high chloride waste streams for facilities producing more than 5 million pounds per year with high chlorides processes. The technology costs considered for this requirement involve segregating the high chloride waste streams from other process wastewater and managing these high chloride streams through sidestream evaporation. Details on the costs and economic impacts of the chlorides removal provision can be found in the TDD and the RIA, respectively.
In developing ELGs, the CWA calls for EPA to identify the effluent reduction from each level of control (CWA section 304(b)(2)(A)(BAT), (b)(4)(A)(BCT), and (b)(1)(A)(BPT). 33 U.S.C. 1314(b)(2)(A)(BAT); 1314(b)(4)(A)(BCT), and 1314(b)(1)(A)(BPT)). To estimate effluent reduction, or removals, EPA first estimates on an annual, per facility basis, the pollutant load discharged today. EPA then estimates pollutant discharge loads and removals that would result from the proposed regulatory options. As described in section VII, the three proposed regulatory options apply different combinations of wastewater treatment technology to specific sets of facilities based on facility production size thresholds. EPA estimates pollutant discharge loads and removals for two MPP waste streams: (1) MPP process wastewater and (2) high chlorides wastewater (as a segregated waste stream).
Supporting analyses and datasets for the MPP loadings calculations include the following:
• MPP Industry Profile—identifies the MPP facilities impacted by the proposed rule and key inputs for the loadings/removal analysis including processing type, discharge status (
• Treatment in Place (TIP) Analysis—identifies existing wastewater treatment based on facility-specific data, where possible, and assigns existing wastewater treatment to facilities without data based on MPP Questionnaire response data and engineering best judgment (
• Pollutants of Concern (POC) Analysis—identifies the pollutants present in untreated MPP process wastewater at treatable levels (
• Analytical Database—compilation of all wastewater sampling from publicly available sources or collected as part of the proposed rule. The database includes facility-specific wastewater monitoring data from the MPP Questionnaire, EPA sampling, 2021 Discharge Monitoring Report (DMR) data for select MPP facilities, responses to EPA's CWA section 308 data requests, and any other data on MPP process wastewater provided to EPA (
For the MPP process waste stream, pollutant loads and removals were estimated for the wastewater treatment technology systems described in the regulatory options: phosphorus removal by chemical precipitation for direct and indirect dischargers, nitrogen removal by biological treatment to achieve full denitrification for direct and indirect dischargers, select conventional pollutant (
For the MPP high chlorides waste stream, pollutant loads and removals were estimated based on evaporation technology, and this was applied to both direct and indirect facilities with a high chlorides waste stream.
Baseline pollutant loadings and removals were calculated using the facility flows and the effluent pollutant concentrations associated with the TIP analysis. Using data from the MPP Questionnaire and existing data, EPA identified facility-specific details on facility operations (type of processing), discharge status, and existing TIP. If no relevant treatment is currently in place at a facility, the raw process wastewater concentrations were used.
Effluent loads for each facility were calculated for the POCs for the treatment system considered under the regulatory options by multiplying the pollutant concentration associated with the wastewater treatment technology by the wastewater flow rate. For indirect dischargers, (
Table IX-1 summarizes the net reduction in annual pollutant loadings, compared to baseline, associated with each regulatory option. Removals for total nitrogen, total phosphorus, chlorides the conventional pollutants BOD, TSS, oil & grease are shown here. Additional pollutants are also removed by the technologies. More information on the pollutant loads is available in the TDD. Compared to the existing rule baseline, all proposed regulatory options result in decreased pollutant loadings to surface waters.
The elimination or reduction of one form of pollution may create or aggravate other environmental problems. Therefore, CWA sections 304(b) and 306 require EPA to consider non-water quality environmental impacts (including energy requirements) associated with ELGs. To consider these factors, EPA considered the potential impact of the technology basis on energy consumption, air pollution, and solid waste generation. As shown below, EPA anticipates that all of the proposed rule options would produce minimal non-water quality environmental impacts and as such proposes that they are acceptable. Additional information about the analysis of these non-water quality impacts is contained in the TDD.
MPP Facilities use energy when operating processing equipment, operating the facility buildings, and operating wastewater treatment systems. For this proposal, EPA considers whether there would be an associated change in the incremental energy requirements compared to baseline. Energy requirements vary depending on the regulatory option evaluated and the current operations of the facility. Therefore, as applicable, EPA estimates the increase in energy usage in (megawatt hours, MWh) for equipment added to the plant systems or in consumed fuel (gallons). EPA sums the estimated increase to calculate the net change in energy requirements from baseline for the regulatory options.
EPA estimates the amount of energy needed to operate the additional wastewater treatment systems based on conventional pollutant (
By comparison, electric power generation facilities generated 4,108 billion MWh of electric power in the United States in 2021 (EIA, 2021).
EPA proposes to find that wastewater treatment processes evaluated in this proposed rule would not generate significant air emissions above the current emissions, either directly from the facility or indirectly from the facilities that provide energy to MPP facilities. Possible non-odorous gases that may be emitted from these processes include nitrogen and carbon dioxide. EPA expects a slight increase in nitrogen gas generated over the current baseline because it would be formed during the denitrification process and would escape to the atmosphere. Since nitrogen comprises over 78 percent of the Earth's atmosphere and is not considered a greenhouse gas, the additional generation is not considered to pose an environmental impact. Carbon dioxide will be released when BOD is oxidized by oxygen-containing compounds. However, the BOD being treated would generally not increase but rather just the location of treatment would change (POTW vs MPP facility). Therefore, there would generally be no significant incremental increase in carbon dioxide over current treatment levels.
Odors are the only significant air pollution problem associated with the treatment of MPP wastewaters and generally are associated with anaerobic conditions. Thus, flow equalization basins, DAF units, and anaerobic lagoons are possible sources of malodors, especially for indirect dischargers who may not currently do pretreatment prior to discharging to a POTW. Potential odorous substances associated with MPP wastewater include ammonia, hydrogen sulfide, and organic compounds. Ammonia in MPP wastewaters is typically due to breakdown of more complex substances and can be released under certain circumstances. However, aerobic nitrifying conditions will favor keeping ammonia in solution as it is converted to nitrate, meaning that odors will
Hydrogen sulfide can be formed under anaerobic and anoxic conditions such as in the denitrification reactors. Hydrogen sulfide generation requires the presence of sulfate in the wastewater, which is typically low in MPP wastes. (In most cases the source of sulfates in MPP wastewater is the source water supply.) In addition, the formation of sulfide is less favored than the reduction of nitrate to nitrogen, meaning that under most circumstances, sulfide would not be formed to a greater degree than is currently the case, especially if the facility is well-managed.
Volatile odorous organic compounds can be generated in anaerobic lagoons. If specific facilities have odor difficulties, covers over the lagoons can be used to capture odorous substances that are then subsequently destroyed by some oxidation or combustion process. Some facilities capture anaerobically generated methane for fuel; if that gas stream must be scrubbed before use, the waste would be recycled to the wastewater treatment plant, resulting in no net environmental impact. Such oxidation and combustion processes would potentially result in additional carbon dioxide generation; however, that generation constitutes minimal incremental generation, since the organic substances involved would have gone through oxidation naturally. Typically, odorous organic compounds are well-destroyed in aerobic systems. Overall, the incremental change in odor problems associated with this proposed regulation are expected to be small. Odor problems usually are significant only when the sulfur content of MPP wastewaters is high, especially when treatment facilities are not well managed. Generally, MPP wastewater treatment facilities using anaerobic processes for treating wastewater with a low sulfur concentration have few odor problems. At such facilities, maintaining a naturally occurring layer of floating solids in anaerobic contact basins and lagoons generally minimizes odors. Thus, the technology options should not increase emissions of odorous compounds from well-managed MPP wastewater treatment facilities. If a facility uses nitrification to meet the ammonia limitations, then any ammonia odors would be minimal because the process keeps the ammonia in solution as it is converted to nitrate. However, using anaerobic treatment for initial BOD reduction before aerobic treatment would increase emissions of methane and volatile organic compounds, but the increases should be negligible given today's extensive use of lagoons and other anaerobic processes in MPP wastewater treatment. In addition, covering anaerobic lagoons and flaring the gas captured can reduce these emissions. If the volume of captured gas is sufficient, it can be used as a fuel to produce process heat or electricity. EPA observed facilities capturing gas for use as fuel during site visits.
EPA estimates that compliance with the proposed rule would not significantly increase the amount of wastewater treatment sludge generated for the meat and poultry processing industry. Table X-2 estimates the incremental sludge production increases for the proposed rule.
The estimates of sludge production in Table X-2 are based on the concentrations of BOD entering the biological part of the treatment system after pretreatment (
The values presented in Table X-2 represent the total sludge production for the modeled unit processes. The values in Table X-2 assume a zero net increase in solids production from conventional pollutant treatment at affected indirect dischargers, as the burden of treatment shifts from the POTW to the MPP facility. Additional solids are expected to be generated from chemical phosphorus removal as a result of this proposed rule. Generally, a facility will either combine the solids generated from this process with other process solids, or it may elect to process and resell the reclaimed phosphorus on the private market. If a facility selects an aluminum based chemical process for precipitation, this may limit the ability of the solids to be land applied. EPA also expects that more emphasis on pollution prevention (
The environmental assessment for the proposed rule reviewed currently available literature on the documented environmental and human health impacts of MPP wastewater discharges and conducted modeling to estimate impacts of MPP discharge to surface waters and downstream environments at both localized and regional scales. EPA's review of the scientific literature documents cases of the extensive impacts of MPP wastewater discharges on human health and the environment and a full description of EPA's modeling methodology and results are provided in the Environmental Assessment document. EPA modeled the impacts of MPP discharges at baseline conditions (pre-rule conditions) and the improvements that may result if the proposed options were implemented.
It is well established that effluent guidelines are not required to consider the impacts on receiving water quality
As discussed in the Environmental Assessment document, current scientific literature as well as EPA's own data indicated that MPP wastewaters contain large amounts of a wide range of harmful pollutants, which contribute to extensive environmental impacts and can have detrimental effects on human health through multiple exposure routes.
Nutrient overloading of surface waters is a national issue, and this concern extends to surface waters receiving MPP wastewater, with 36 percent and 37 percent of catchments downstream
Excess nutrients can impact human health through several pathways, both direct and indirect. High nitrate concentrations in drinking water can lead to infant methemoglobinemia (blue baby syndrome), colorectal cancer, thyroid disease, and neural tube defects (USEPA. 2000. EPA-822-B-00-002) (Ward et al. 2018).
Drinking water quality can be impacted by several other pollutants present in MPP wastewater in addition to nutrients. Consumption of water contaminated with pathogenic bacteria can pose serious health risks, ranging from gastrointestinal illness like diarrhea, vomiting, and fever, to sepsis and toxic shock syndrome in extreme cases (Baskin-Graves et al. 2019).
Pollutants found in MPP wastewater also compromise aquatic and terrestrial biota survival and reproduction. For example, biodiversity loss can occur when aquatic organisms are exposed to elevated levels of chlorides, killing or impairing freshwater species, and allowing for the proliferation of more salt tolerant organisms (Weber-Scannell and Duffy. 2007).
The environmental assessment for the proposed rule reviewed currently available literature on the documented environmental and human health impacts of MPP wastewater discharges and conducts modeling to estimate the impacts of these discharge to surface waters and downstream environments at both localized and regional scales. EPA modeled the water quality impacts of MPP discharges at baseline conditions (pre-rule conditions) and the improvements that would likely result after the implementation of the rule in both a set of smaller case study watersheds as well as in larger watersheds that represent diverse land areas across the continental U.S.
To evaluate the potential water quality impacts of the proposed rule, EPA developed models of both the selected case study watersheds and larger, watersheds using the Hydrologic and Water Quality System (HAWQS) 2.0 and the Soil and Water Assessment Tool
EPA identified three case study locations to help demonstrate the water quality effects of the proposed rule at a fine spatial scale. Case study locations were chosen based on the contributions of NPDES-permitted dischargers, areas of existing impairment(s), and availability of observed data to facilitate model calibration. Regarding NPDES-permitted discharger contributions, watershed locations were considered if they contained one or more discharger with significant nutrient loads
EPA also modeled larger watersheds to demonstrate the water quality impacts of the proposed rule over a greater portion of the nation covering a wider variety of land area types than the case studies. Three HUC2 watershed
To further understand the environments and waterbody use types which may be impacted by MPP wastewater discharge under baseline conditions, EPA conducted a GIS analysis to identify sensitive habitats downstream of direct and indirect MPP facility final wastewater outfalls across the nation. EPA used publicly available databases to identify impaired waters, fisheries (shellfishing, recreational, and commercial fishing), threatened and endangered species habitat and protected areas, priority waterbodies, and recreational areas within 25 river miles of a process wastewater outfall. EPA also identified the number of each sensitive environment type that would be expected to experience improved water quality under proposed rule Options. See Chapter 4 and Appendix B of the EA for details regarding datasets used and GIS methodologies.
EPA focused its quantitative analyses on the environmental and human health impacts associated with exposure to pollutants via the surface water pathway. Both direct and indirect discharge sources were considered in these analyses and models. These analyses concentrated on improvements in surface water quality; impacts to sensitive environments, including wildlife habitat, fisheries, and impaired waters; and impacts to human health from consumption of contaminated drinking water or exposure to contaminated surface waters via recreational activities.
EPA estimated that reduced pollutant loadings to surface waters will improve water quality by reducing nutrient concentrations in all waters immediately downstream of MPP wastewater outfalls under proposed rule options in the case study modeling. When the most stringent technology options were applied (representing regulatory Option 3) nutrient concentrations changed minimally in certain watersheds (less than 1 percent reductions), while other receiving waters could on average see up to 81 percent and 83 percent reductions in TP and TN, respectively.
The pollutants associated with MPP wastewater causing the greatest number of impairments under baseline conditions were pathogens, nutrients, and oxygen depletion. EPA estimated that 70 percent and 75 percent of all stream segments
EPA identified 108 unique vulnerable animal and insect species that have habitat located in watersheds potentially impacted by MPP wastewater discharge. Species groups included amphibians, birds, clams, crustaceans, fishes, insects, mammals, reptiles, and snails. Of these species, 26 percent were considered of lower vulnerability, 5 percent were moderately vulnerable, and 69 percent were found be of a high vulnerability status. EPA estimated that 88 percent and 90 percent of downstream waterbodies serving as habitat to these threatened and endangered species could see water quality improvements compared to baseline conditions, under Options 1 or 2, and 3, respectively.
EPA's analysis indicated that MPP wastewater discharges to surface waters pose the greatest risk to
Intentional or accidental consumption of water contaminated with pollutants such as pathogens and nitrate can cause health impacts in humans, ranging from gastrointestinal illness to thyroid disease. EPA estimated that implementation of the proposed rule options would result in improvements in source water quality to 121 drinking water service areas under Options 1 and 2, and 147 under Option 3. EPA also estimated the number of recreational areas that may experience improved water conditions under each rule option. For Options 1 or 2, and 3, 58 percent and 64 percent of recreational areas are expected to improve, respectively, the majority of which are classified as local parks.
Impacts to fisheries and fishing habitat are also of concern to human health as the consumption of contaminated shellfish can cause illness. Also, some individuals rely on subsistence fishing for survival and the reduction of fish populations due to compromised habitat can threaten their wellbeing. EPA estimated that 26 unique species used in commercial fishing may potentially be impacted by MPP wastewater release under baseline conditions, as well as 1 commercial oyster bed, and 9 recreational fishing areas. For preferred Option 1, 96 percent of all commercial fisheries, and 67 percent of recreational fishing areas, may benefit from improved water quality. These statistics are the same for Options 2 and 3 as this analysis currently reflects impacts from direct discharging facilities only. EPA plans to expand this analysis to include impacts to fishing areas from indirect MPP wastewater discharge to support any final rule.
This section summarizes EPA's estimates of the changes in national environmental benefits expected to result from changes in MPP facility wastewater discharges described in Section IX of this preamble, and the resultant environmental effects, summarized in Section XI of this preamble. The Benefit Cost Analysis (BCA) report provides additional details on the benefits methodologies and analyses.
Table XII-1 of this preamble summarizes benefit categories associated with the three regulatory options and notes which categories EPA was able to quantify and monetize. Analyzed benefits fall into four broad categories: (1) Human health benefits from surface water quality improvements, (2) ecological conditions and effects on recreational use from surface water quality changes, (3) market and productivity benefits, and (4) air-related effects. Within these broad categories, EPA assessed the benefits associated with the regulatory options in this proposal with varying degrees of completeness and rigor. Where possible, EPA quantified the expected changes in effects and estimated monetary values. However, data limitations, modeling limitations, and gaps in the understanding of how society values certain environmental changes prevented EPA from quantifying and/or monetizing some benefit categories. EPA notes that all human health and environmental improvements discussed in the EA also represent benefits of the proposal (whether quantified or unquantified), and the Agency will continue to enhance its benefits analysis methods where appropriate throughout the rulemaking process.
Pollutants present in MPP wastewater discharges (
Due to data limitations and uncertainties, EPA was only able to monetize a subset of the health benefits associated with changes in pollutant discharges from MPP facilities resulting from the regulatory options in this proposal as compared to baseline. EPA anticipates monetizing benefits associated with a reduction in illness due to primary contact recreation for any final rule making. See the BCA, Chapter 3 and Appendix A for more details on the water quality index (WQI) used.
EPA evaluated whether the regulatory options in this proposal would alter aquatic habitats and human welfare by changing concentrations of pollutants such as ammonia, nitrogen, phosphorus, BOD, DO, fecal coliform bacteria, chlorides, and suspended sediment relative to baseline. As a result, the usability of some recreational waters relative to baseline discharge conditions could improve under each option, thereby affecting recreational users. Changes in pollutant loadings can also change the attractiveness of recreational waters by making recreational trips more or less enjoyable. The regulatory options may also change nonuse values stemming from bequest, altruism, and existence motivations. Individuals may value water quality maintenance, ecosystem protection, and healthy species populations independent of any use of those attributes.
EPA used a WQI to translate water quality measurements, gathered for multiple parameters that are indicative of various aspects of water quality, into a single numerical indicator that reflects achievement of quality consistent with the suitability for certain uses. The WQI included six parameters: DO, BOD,
EPA estimated the change in monetized benefit values using an updated version of the meta-regressions of surface water valuation studies used in the benefit analyses of the 2015 (USEPA. 2015. EPA-821-R-15-005) and 2020 (USEPA. 2020. EPA-821-R-20-003) rules affecting the Steam Electric point source category. The meta-regressions quantify average
Table XII-2 presents the main analysis results of WTP estimates, based on Model 1 of the meta regression analysis and using 3 percent and 7 percent discount rates (USEPA. 2020. EPA-821-R-20-003). The total annualized values of water quality improvements from reducing nutrients, bacteria and pathogens, conventional pollutants, and other pollutants discharges from MPP facilities to affected HUC12s ranged from $0.52 million under Option 1 (7 percent discount rate) to $33 million under Option 3 (3 percent discount rate). These results represent only a limited regional assessment of benefits and do not reflect national water quality benefits. See the Benefit Cost Analysis for a more detailed explanation.
The proposed rule has the potential to affect air pollution through three main mechanisms: (1) Indirect changes in CO
EPA evaluated potential effects resulting from net changes in air emissions of five pollutants: CO
Table XII-3 of this preamble shows the changes in emissions of CO
EPA followed the same methodology used in analyzing the revisions to the technology based ELGs for the steam electric generating point source category to monetize human health related impacts from changes in NO
EPA's use of EGRID values for the proposed rule analysis is conservative in that it would tend to overstate emissions associated with the increased power consumption to operate MPP wastewater treatment systems since emission factors are expected to decline in the coming decades (
To assess the potential for the rule to benefit threatened and endangered species (both aquatic and terrestrial) relative to the baseline, EPA analyzed the overlap between waters expected to see reductions in wildlife water quality criteria exceedance status under a particular option and the known critical habitat locations of high vulnerability threatened and endangered species. EPA examined the life history traits of potentially affected threatened and endangered species and categorized them by potential for population impacts due to surface water quality changes. Chapter 2 of the BCA and Chapter 4 of the EA provide additional detail on the methodology. EPA's analysis showed that there are 113 species whose known critical habitats overlap with surface waters downstream of facilities that may be affected by the proposed options. Of these species, 28 were considered to be of lower vulnerability status, 5 were considered moderate vulnerable, and 78 were consider highly vulnerable. Principal sources of uncertainty include the specifics of how changes under the regulatory options will impact threatened and endangered species, exact spatial distribution of the species, and additional species of concern not considered.
Using the analysis approach described above, EPA estimated annualized benefits of the three regulatory options for all monetized categories. Table XII-5 and Table XII-6 of this preamble summarize the total annualized benefits using 3 percent and 7 percent discount rates, respectively. The preferred option (Option 1) has monetized benefits estimated at $90 million using a three percent discount rate and $85 million using a seven percent discount rate.
The monetary value of the proposed rule's effects on social welfare does not account for all effects of the proposed options because, as described above, EPA is currently unable to quantify and/or monetize some categories. EPA anticipates the proposed rule Options would also generate important unquantified benefits, including but not limited to:
The BCA Report discusses changes in these potentially important effects qualitatively, indicating their potential magnitude where possible. EPA will continue to seek to enhance its approaches to quantify and/or monetize a broader set of benefits for any final rule and solicits comment on monetizing some of these additional benefits categories.
Consistent with EPA's commitment to integrating environmental justice (EJ) in the Agency's actions, the Agency analyzed the distribution of impacts of this action across all potentially affected communities and sought input from stakeholders representing communities with potential EJ concerns. EPA prepared this analysis to implement the recommendations of the Agency's EJ Technical Guidance (USEPA. 2016).
Overall, the analysis showed that communities near MPP facilities, surface waters downstream
EPA conducted a literature review to identify studies, data, and research describing the environmental and human health impacts of MPP facilities on low-income individuals and racial/ethnic minorities, focusing primarily on facility discharges of pollutants to water. EPA identified 21 papers published since 2005 that were relevant to this rule making. These sources suggested that MPP facilities are often located in rural areas with multiple large facilities in the same county or region, and that half of the communities surrounding slaughterhouses in the U.S. contain at least 30 percent of residents living below the poverty line, which is over twice the national average (Winders and Abrell. 2021)
EPA performed a set of proximity analyses using the EJSCREENBatch R package (USEPA. 2022)
First, EPA analyzed communities located within a 1-mile radius of an MPP facility using facility coordinates. EPA found that communities within 1 mile of an MPP facility have greater proportions of low-income individuals and individuals identifying as Asian, Black, and/or Hispanic than the national average. EPA also considered how these
Second, EPA examined the characteristics of communities located within a one-mile distance of a surface waterbody downstream of MPP facilities.
Lastly, EPA conducted an analysis of communities served by public water systems (PWSs) either with a source water intake within 25 miles downstream of an MPP wastewater outfall (direct PWS) or buying water from a direct PWS (buying PWS). Service areas were determined using a multi-tiered approach based on availability, first using service areas identified in the Hydroshare (SimpleLab, EPIC.2022),
For additional detail on the proximity analysis and drinking water service area methodologies, and further results of the screening analysis, please refer to Chapter 7 of the EA.
Due to the large number of potential communities with EJ concerns who could be affected, as identified in the results of the screening analysis, EPA used a wide-reaching approach to community engagement to maximize awareness of the rulemaking and the potential impacts of proposed policy options. An overview of the rulemaking and its potential interest to communities was presented to the Office of Environmental Justice and External Civil Rights management team on May 30, 2023 to increase national awareness of the proposed rulemaking. This team includes EJ National Program and Regional managers, who engage directly with communities across the country. EPA also presented a rulemaking overview and held a discussion session with participants of the National Environmental Justice Community Engagement Call on June 20th, 2023, which had over 200 attendees.
EPA evaluated the distribution of estimated benefits and costs of the proposed regulatory options across the affected population, with consideration of their distribution among communities with environmental justice concerns. Office of Management and Budget (OMB) Circular A-4, which provides guidance to agencies on the development of regulatory analyses as required under E.O. 12866, states that regulatory analyses “should provide a separate description of distributional effects (
To determine how benefits from pollutant reductions in MPP wastewater may be distributed among communities with environmental justice concerns, EPA calculated the population-weighted averages of these groups for impacted drinking water service areas and communities potentially reliant on subsistence fishing from surface waters downstream of MPP wastewater outfalls. EPA then compared these community characteristics to the subset of these populations who are expected to benefit under each proposed regulatory option.
EPA estimated that 7,595,010 people receive drinking water from a Public Water System (PWS) that either directly intakes source water from a surface water potentially impacted by MPP wastewater (direct) or from a PWS that buys drinking water from a direct PWS (buying). The population of these service areas (SAs) receiving potentially impacted drinking water has greater proportions of individuals identifying as Black/African American than the national average. Under all proposed regulatory options, drinking water benefits from improved source water are expected to accrue at a higher rate to low-income and Black/African American individuals. For Options 1 and 2, which impact the same direct discharging facilities and therefore the same service areas, 75.1 percent of the total receiving population would be impacted, 31.2 percent and 22.7 percent of which identify as low income and Black/African American, respectively. For Option 3, 82.7 percent of the total receiving population would be impacted, 30.5 percent and 22.1 percent of which identify as low income and Black/African American, respectively. For further discussion of changes in the distribution of drinking water benefits under proposed rule options, refer to section 3 of Chapter 7 of the EA.
EPA estimated that 13,244,292 people live within a 50-mile distance of a downstream surface water potentially impacted by MPP wastewater.
The results of EPA's screening analyses found that communities near MPP facilities, downstream surface waters, and those using impacted surface waters have greater proportions of low-income and/or racial/ethnic minorities than the national average.
This section describes the statistical methodology used to calculate the long-term averages (LTAs), variability factors, and limitations for BAT, BPT, new source performance standards and pretreatment standards for existing and new sources. EPA's statistical methodology is well established and has been upheld by courts
The proposed ELGs, collectively referred to in the remainder of this section as “limitations,” for pollutants for each regulatory option, as presented in this preamble, are provided as “daily maximums” and “maximums for monthly averages.” Definitions provided in 40 CFR 122.2 state that the daily maximum limitation is the “highest allowable `daily discharge,' ” and the maximum for monthly average limitation is the “highest allowable average of `daily discharges' over a calendar month, calculated as the sum of all `daily discharges' measured during a calendar month divided by the number of `daily discharges' measured during that month.” Daily discharges are defined to be the `discharge of a pollutant' measured during a calendar day or any 24-hour period that reasonably represents the calendar day for purposes of sampling.”
EPA first determines an average performance level (the “long-term average”) that a facility with well-designed and operated model technologies (which reflect the appropriate level of control) is capable of achieving. This LTA is calculated from the data from the facilities using the BPT, BCT, and BAT technologies for the regulatory option. EPA uses all values and a lognormal distribution to calculate the facility LTA, which is then used in calculations for both limitations. EPA expects that all facilities subject to the limitations will design and operate their treatment systems to achieve the LTA performance level on a consistent basis because facilities with well-designed and operated BAT and BPT/BCT technologies have demonstrated that this can be done.
EPA then calculates the 99th percentile of daily measurements and the 95th percentile of monthly averages. The percentiles are chosen with the intention to accommodate reasonably anticipated variability within the control of the facility while also reflecting a level of performance consistent with the CWA requirement that these effluent limitations be based on the “best” available technologies. The daily maximum limitation is based on the 99th percentiles of the distribution of the daily measurements. The maximum monthly average limitation is based on the 95th percentile of the distribution of the monthly averages of the daily measurements and monthly averages. Using the LTA and the percentiles, EPA determines the daily and monthly “variability factors” (VFs), which are allowances for the variation in pollutant concentrations when processed through well designed and operated treatment systems. The allowance for variance incorporates all components of variability including process and wastewater generation, sample collection, shipping, storage, and analytical variability. If a facility operates its treatment system to meet the relevant LTA, EPA expects the facility to be able to meet the limitations. VFs assure that normal fluctuations in a facility's treatment are accounted for in the limitations. The daily VFs are calculated by dividing the 99th percentile of daily measurements by the corresponding LTA. The monthly VFs are calculated by dividing the 95th percentile of monthly measurements by the corresponding LTA.
EPA calculates LTAs and VFs for each facility with sufficient daily or monthly data. EPA then combines the LTAs and daily and monthly VFs across all facilities by calculating their median values.
To calculate the limitations, the LTAs are multiplied by the corresponding VFs. This ensures the limitations account for these reasonable excursions above the LTA. EPA's use of VFs results in limitations that are generally well above the actual LTA. For direct dischargers (BAT, BPT), EPA developed limits for total nitrogen, total phosphorus,
In developing ELGs for any industry, EPA qualitatively reviews all the data before selecting data that represents proper operation of the technology that forms the basis for the limitations. EPA typically uses four criteria to assess the data. The first criterion requires that the facility have the BPT, BCT, or BAT treatment technology and demonstrate consistently diligent and optimal operation. Application of this criterion typically eliminates any facility with treatment other than the candidate technology. EPA generally determines whether a facility meets this criterion based upon site visits, discussions with facility management, and/or comparison to the characteristics, operation, and performance of treatment systems at other facilities. EPA often contacts facilities to determine whether data submitted were representative of normal operating conditions for the facility and equipment. As a result of this review, EPA typically excludes the data in developing the limitations when the facility has not optimized the performance of its treatment system to the degree that represents the appropriate level of control (
A second criterion generally requires that the influents and effluents from the treatment components represent typical wastewater from the industry, without incompatible wastewater from other sources. Application of this criterion results in EPA selecting those facilities where the commingled wastewaters did not result in substantial dilution, facilities without equalization where slug loads could result and cause frequent upsets and/or overloads, more concentrated wastewaters, or wastewaters with different types of pollutants than those generated by the waste stream for which EPA is proposing effluent limitations.
A third criterion typically ensures that the pollutants are present in the influent at sufficient concentrations to evaluate treatment effectiveness. To evaluate whether the data meet this criterion for inclusion as a basis of the limitations, EPA often uses the long-term average test (or LTA test) for facilities where EPA possesses paired influent and effluent data (see section 13 of the TDD for details of the LTA test). The test measures the influent concentrations to ensure a pollutant is present at a sufficient concentration to evaluate treatment effectiveness. If a
A fourth criterion typically requires that the data are valid and appropriate for their intended use (
EPA used specific data sources to derive limitations for pollutants for wastewater streams resulting from MPP process wastewater and high chlorides processes. The LTAs, VFs, and limitations for each waste stream were based on pollutant concentrations collected during EPA sampling episodes, DMR data, data provided by EPA Regions and State agencies, and data submitted by industry. EPA conducted six sampling episodes. Industry discharge data includes data submitted in the MPP Questionnaire, data submitted by facilities upon request, and publicly available discharge monitoring reports.
EPA identified facilities that were operating the BAT technology for one or more of the proposed pollutants for regulation: total nitrogen, total phosphorus,
Limitations may be based on technology transferred from a different subcategory within an industry or from another industrial category. Limitations based on transfer of technology must be supported by a conclusion that the technology is indeed transferable and a reasonable prediction that it will be capable of meeting the prescribed effluent limits (
For the proposed limitations, EPA combined data sets across all MPP processes to give a single limit per analyte for the industry. As the raw materials for MPP processes are animals/animal products, composed of carbon, nitrogen, and phosphorus, EPA finds combining data from different MPP processes to be reasonable. Additionally, with the available data, EPA performed a comparison of influent from the different MPP processes and found the wastewater characteristics to be comparable. Therefore, EPA proposes to find that the combination is reasonable and solicits data to inform this analysis.
Additional details on the data and methodology used to calculate the effluent limitations in today's proposal can be found in TDD section 13. In addition, the proposed limitations for each level of control for the preferred Option 1 can be found in the proposed regulatory text following this preamble.
In addition to the proposed limitations, as described earlier EPA is soliciting comment on including effluent limitations for
ELGs act as a primary mechanism to control the discharge of pollutants to waters of the United States. This proposed rule would be applied to MPP wastewater discharges through incorporation into NPDES permits issued by the EPA or States under CWA section 402 (33 U.S.C. 1342) and through pretreatment program requirements under CWA section 307 (33 U.S.C. 1317).
The Agency has developed the limitations and standards for this proposed rule to control the discharge of pollutants from the MPP point source category. Once promulgated, those permits or control mechanisms issued after this rule's effective date would be required to incorporate the effluent limitations guidelines and standards, as applicable. Also, under section 510 of the CWA (33 U.S.C. 1370), States may require effluent limitations under State law as long as they are no less stringent than the requirements of a final rule. Finally, in addition to requiring application of the technology-based ELGs promulgated in a final rule, CWA section 301(b)(1)(C) (33 U.S.C. 1311(b)(1)(C)) requires the permitting authority to impose more stringent effluent limitations on discharges as necessary to meet applicable water quality standards.
Categorical pretreatment standards for existing indirect dischargers, unlike effluent limitations guidelines applicable to direct dischargers, are directly enforceable and must specify a time for compliance not to exceed three years under CWA section 307(b)(1) (33 U.S.C. 1317(b)(1)). Under EPA's General Pretreatment Regulations for Existing and New Sources (40 CFR part 403), POTWs with flows in excess of 5 million gallons per day (MGD) must develop pretreatment programs meeting prescribed conditions. These POTWs have the legal authority to require compliance with applicable pretreatment standards and control the introduction of pollutants to the POTW through permits, orders, or similar means. POTWs with approved pretreatment programs act as the control authorities for their industrial users. Among the responsibilities of the control authority are the development of the specific discharge limitations for the POTW's industrial users. Because pollutant discharge limitations in categorical pretreatment standards may be expressed as concentrations or mass limitations, in many cases, the control authority must convert the pretreatment standards to limitations applicable to a specific industrial user and then include these in POTW permits or another control instrument.
New source direct dischargers must comply with the new source performance standards (NSPS) of this rule when they commence discharging MPP process wastewater. CWA section 306 (33 U.S.C. 1316) states that NSPS are effective upon promulgation. While arguably this language could mean that they are also enforceable upon
Facilities that discharge wastewater from operations from more than one category may need to comply with limitations and standards from multiple subcategories. For these facilities, permit writers would use the “building block approach” based on production or wastewater discharge flow to combine the sets of limitations into one final effluent limitation in the facility's permit. In cases where one part of the wastewater comes from operations with no national technology-based limitations, the permit writer must first establish BPJ limitations for this portion of the wastewater, and then combine these with any applicable national technology-based limitations using the building block approach. However, first processing subcategories (subcategories A, B, C, D, and K) are defined to include wastewater discharges from further processing and rendering operations at the same facility. These facilities will only be regulated by the relevant first processing subcategory or subcategories.
In May 2000, EPA promulgated a regulation streamlining the NPDES regulations (
The CWA requires application of effluent limitations established pursuant to section 301 or the pretreatment standards of section 307 to all direct and indirect dischargers. However, the statute provides for the modification of these national requirements in a limited number of circumstances. The Agency has established administrative mechanisms to provide an opportunity for relief from the application of the national effluent limitations guidelines for categories of existing sources for toxic, conventional, and nonconventional pollutants.
EPA may develop, with the concurrence of the State, effluent limitations or standards different from the otherwise applicable requirements for an individual existing discharger if it is fundamentally different with respect to factors considered in establishing the effluent limitations or standards applicable to the individual discharger. Such a modification is known as a Fundamentally Different Factor (FDF) variance. FDF variances are not available for new sources (
EPA, in its initial implementation of the effluent guidelines program, provided for the FDF modifications in regulations, which were variances from the BPT effluent limitations, BAT limitations for toxic and nonconventional pollutants, and BCT limitations for conventional pollutants for direct dischargers. FDF variances for toxic pollutants were challenged judicially and ultimately sustained by the Supreme Court in
Subsequently, in the Water Quality Act of 1987, Congress added a new section to the CWA—section 301(n) (33 U.S.C. 1311(n)). This provision explicitly authorizes modifications of the otherwise applicable BAT effluent limitations, if a discharger is fundamentally different with respect to the factors specified in CWA section 304 (other than cost) from those considered by EPA in establishing the effluent limitations. CWA section 301(n) also defined the conditions under which EPA may establish alternative requirements. Under section 301(n), an application for approval of a FDF variance must be based solely on (1) Information submitted during rulemaking raising the factors that are fundamentally different or (2) information the applicant did not have a reasonable opportunity to submit during the rulemaking. The alternate limitation must be no less stringent than justified by the difference and must not result in markedly more adverse non-water quality environmental impacts than the national limitation.
EPA regulations further detail the substantive criteria used to evaluate FDF variance requests for direct dischargers. 40 CFR 125.31(d) and 40 CFR 403.13(d) identify six factors (
CWA section 301(c) (33 U.S.C. 1311(c)) authorizes a variance from the otherwise applicable BAT effluent guidelines for nonconventional pollutants due to economic factors. The request for a variance from effluent limitations developed from BAT guidelines must normally be filed by the discharger during the public notice period for the draft permit. 40 CFR 122.21(m)(2) specifies that section 301(c) variances must be filed within 270 days of promulgation of an ELG. Specific guidance for this type of variance is provided in
CWA section 307(b)(1) (33 U.S.C. 1317(b)) establishes a discretionary program for POTWs to grant “removal credits” to their indirect dischargers. Removal credits are a regulatory mechanism by which industrial users may discharge a pollutant in quantities that exceed what would otherwise be allowed under an applicable categorical pretreatment standard because it has been determined that the POTW to which the industrial user discharges consistently treats the pollutant. EPA has promulgated removal credit regulations as part of its pretreatment regulations (40 CFR 403.7). These regulations provide that a POTW may give removal credits if prescribed requirements are met. The POTW must apply to and receive authorization from the Approval Authority. To obtain authorization, the POTW must demonstrate consistent removal of the pollutant for which approval authority is sought. Furthermore, the POTW must have an approved pretreatment program. Finally, the POTW must demonstrate that granting removal credits will not cause the POTW to violate applicable federal, State, or local sewage sludge requirements or the POTW's NPDES permit limits and conditions (40 CFR 403.7(a)(3)).
The United States Court of Appeals for the Third Circuit interpreted the CWA as requiring EPA to promulgate the comprehensive sewage sludge regulations pursuant to CWA section 405(d)(2)(A)(ii) (33 U.S.C. 1345(d)(2)(A)(ii)) before any removal credits could be authorized (
The 40 CFR part 503 sewage sludge regulations allow four options for sewage sludge disposal: (1) Land application for beneficial use, (2) placement on a surface disposal unit, (3) firing in a sewage sludge incinerator, and (4) disposal in a landfill which complies with the municipal solid waste landfill criteria in section 40 CFR 503.4. Because pollutants in sewage sludge are regulated differently depending upon the use or disposal method selected, under EPA's pretreatment regulations the availability of a removal credit for a particular pollutant is linked to the POTW's method of using or disposing of its sewage sludge. The regulations provide that removal credits may be potentially available for the following pollutants:
(1) If POTW applies its sewage sludge to the land for beneficial uses, disposes of it in a surface disposal unit, or incinerates it in a sewage sludge incinerator, removal credits may be available for the pollutants for which EPA has established limits in 40 CFR part 503. EPA has set ceiling limitations for nine metals in sludge that is land applied, three metals in sludge that is placed on a surface disposal unit, and seven metals and 57 organic pollutants in sludge that is incinerated in a sewage sludge incinerator.
(2) Additional removal credits may be available for sewage sludge that is land applied, placed in a surface disposal unit, or incinerated in a sewage sludge incinerator, so long as the concentration of these pollutants in sludge do not exceed concentration levels established in Part 403, Appendix G, Table II. For sewage sludge that is land applied, removal credits may be available for an additional two metals and 14 organic pollutants. For sewage sludge that is placed on a surface disposal unit, removal credits may be available for an additional seven metals and 13 organic pollutants. For sewage sludge that is incinerated in a sewage sludge incinerator, removal credits may be available for three other metals (40 CFR 403.7(a)(3)(iv)(B)).
(3) When a POTW disposes of its sewage sludge in a municipal solid waste landfill that meets the criteria of 40 CFR part 258, removal credits may be available for any pollutant in the POTW's sewage sludge (40 CFR part 403.7(a)(3)(iv)(C)).
The proposed effluent limitations include pollutants not previously regulated in ELGs for direct and indirect MPP dischargers. NPDES permit writers and pretreatment control authorities must establish requirements for regulated MPP facilities to monitor their effluent to ensure that they are complying with the effluent limitations and pretreatment standards. As specified at 40 CFR 122.41, 122.44, and 122.48, all NPDES permits must specify requirements for using, maintaining, and installing (if appropriate) monitoring equipment; monitoring type, intervals, and frequencies that will provide representative data; analytical methods; and reporting and recordkeeping. In addition, 40 CFR 122.42 outlines additional conditions applicable to specified categories of NPDES permits. For example, during the NPDES permit cycle, POTWs must provide adequate notice to the permitting authority of any new introduction of pollutants into the POTW from an indirect discharger which otherwise would be subject to CWA section 301 or 306 if it were directly discharging those pollutants; any substantial change in the volume or character of pollutants being introduced into the POTW; and any anticipated impact to the POTW final discharge (40 CFR 142.2(b)).
The NPDES program requires permittees (with certain specific exceptions) to monitor for limited pollutants and report data at least once a year. 40 CFR 122.44(i)(2). Industrial users and POTWs have similar reporting requirements as specified at 40 CFR 403.12. The general pretreatment regulations at 40 CFR part 403 require significant industrial users (which includes all industrial users subject to Categorical Pretreatment Standards, with certain specific exceptions) to monitor for limited pollutants and report data in June and December, unless required more frequently in the Pretreatment Standard or by the control authority or approval authority (40 CFR 403.12(e)). POTW control authorities are also required by 40 CFR 403.8(f) to conduct annual inspections and sampling to independently assess compliance with standards.
EPA does not plan to promulgate specific monitoring requirements or monitoring frequencies in the MPP rule. Therefore, NPDES permit writers may establish monitoring requirements and monitoring frequencies at their discretion subject to the requirements of the NPDES regulations. Likewise, the control authority for indirect dischargers may establish monitoring requirements and monitoring frequencies at their discretion subject to the requirements of the pretreatment program regulations and in compliance with approved State and POTW program procedures. The Agency notes, however, that since the PRA requires it to estimate the incremental reporting and recordkeeping burden associated with any new regulation, in developing the proposed Part 432 limitations it considered a monthly sampling frequency for purposes of estimating this burden. EPA expects that facilities properly operating and maintaining the wastewater treatment technology system will be able to comply with the monthly average limitation/standard when they sample at the assumed monthly monitoring frequency, although compliance is required regardless of the number of samples analyzed and averaged in a month. EPA recommends that permitting authorities require monitoring samples at some regular, predetermined frequency. If a facility has difficulty complying with the standards on an ongoing basis, the facility should improve its equipment, operations, and/or maintenance.
Facilities are required to use analytical methods specified in or approved under 40 CFR part 136 for compliance monitoring (40 CFR 122.41(j)(4), 403.12(g)(3)). Of note, Part 136 requires facilities to collect grab samples for oil & grease. In developing the Part 432 oil & grease limitations, EPA generally collected six grab samples in a 24-hour monitoring day. For pH, sample types can range from a one-time grab sample during a monitoring day to continuous sampling throughout a monitoring day where pH is a critical aspect of the wastewater treated or the wastewater treatment operation.
In 2004, EPA promulgated NSPS/PSNS for certain discharges from new units. Regardless of the outcome of the current rulemaking, those units that are currently subject to the 2004 NSPS/PSNS will continue to be subject to such standards. In addition, EPA is proposing to clarify in the text of the regulation that, assuming the Agency promulgates BAT/PSES requirements as part of the current rulemaking, units to which the 2004 NSPS/PSNS apply will also be subject to any newly promulgated BAT/PSES requirements because they will be existing sources with respect to such new requirements.
Additional information about these statutes and Executive Orders can be found at
This action is a “significant regulatory action”, as defined under section 3(f)(1) of E.O. 12866, as amended by E.O. 14094. Accordingly, EPA submitted this action to OMB for E.O. 12866 review. Documentation of any changes made in response to the E.O. 12866 review is available in the docket. The EPA prepared an analysis of the potential costs and benefits associated with this action. This analysis, “Benefit and Cost Analysis for Proposed Effluent Limitations Guidelines and Standards for the Meat and Poultry Products Point Source Category” EPA 821-R-23-013, is also available in the docket and is briefly summarized in Section VIII.
The information collection activities in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the PRA. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 2701.02. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here.
This Information Collection Request (ICR) seeks approval of the information requirements in the Proposed Rule for the Effluent Guidelines and Standards for the Meat and Poultry Products (MPP) Category. EPA is proposing revisions to Best Available Technology Economically Achievable (BAT), as well as new Pretreatment Standards for Existing Sources (PSES) and Pretreatment Standards for New Sources (PSNS) under the Clean Water Act (CWA) for MPP facilities. Under the proposed BAT, certain MPP facilities that discharge wastewater directly to waters of the U.S. would be required to monitor for additional pollutants, such as phosphorus. Under the proposed PSES/PSNS, certain MPP facilities that discharge wastewater into publicly owned treatment works (POTWs) would be required to control the discharge of conventional pollutants. The proposed rule would require all affected direct discharging MPP facilities to meet limits for nitrogen, and phosphorus before discharging wastewater to surface waters. These facilities are already required to monitor for nitrogen. The proposed rule would require all affected indirect MPP facilities to meet limits for biological oxygen demand (BOD), oil and grease, and total suspended solids (TSS) before discharging wastewater to POTWs through the use of wastewater treatment technologies and Best Management Practices (BMPs).
The users of the data would be MPP facilities, State and local regulatory authorities, EPA, and, perhaps most importantly, the general public. Specifically for indirect dischargers, the users of the data would be MPP facilities and their Control Authorities. By establishing categorical pretreatment standards for the MPP category in 40 CFR part 432, MPP dischargers to POTWs would become subject to certain reporting requirements in 40 CFR part 403. These include a requirement to submit a baseline monitoring report, 90-day compliance report and on-going monitoring and reporting requirements including results of discharge sampling. Reports submitted to the Permitting or Control Authority may contain confidential business information. However, EPA does not consider the specific information being requested by the rule to be typical of confidential business or personal information. If a respondent does consider this information to be of a confidential nature, the respondent may request that such information be treated as such. All confidential data will be handled in accordance with 40 CFR 122.7, 40 CFR part 2, and EPA's Security Manual Part III, Chapter 9, dated August 9, 1976.
The Meat and Poultry Products (MPP) point source category includes facilities “engaged in the slaughtering, dressing and packing of meat and poultry products for human consumption and/or animal food and feeds. Meat and poultry products for human consumption include meat and poultry from cattle, hogs, sheep, chickens, turkeys, ducks and other fowl as well as sausages, luncheon meats and cured, smoked or canned or other prepared meat and poultry products from purchased carcasses and other materials. Meat and poultry products for animal food and feeds include animal oils, meat meal and facilities that render
Control Authorities have regulatory oversight for pollutant discharges to POTWs. The “Control Authority” refers to the POTW if the POTW has an approved pretreatment program, or the Approval Authority if it has not been approved, which may be the State or EPA. By establishing categorical pretreatment standards for the MPP category, control authorities would be subject to certain oversight requirements in 40 CFR part 403.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.
Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates and any suggested methods for minimizing respondent burden to the EPA using the docket identified at the beginning of this rule. The EPA will respond to any ICR-related comments in the final rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs using the interface at
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action are meat and poultry products facilities that engage in meat and/or poultry slaughter, further processing, and/or rendering. The proposed rule would not affect any current small governmental jurisdictions or not-for-profit organizations. Only facilities that exceed the subcategory-specific production thresholds would be subject to this rule. The Agency has determined that under the proposed Option 1, of the estimated 3,233 small businesses that own MPP facilities, 96 small entities may experience an impact. Of the 96 potentially regulated small entities, no entities are estimated to incur annualized post-tax compliance costs greater than 3 percent of revenues; only one entity is estimated to incur compliance costs between 1 to 3 percent of revenues; 95 small entities are estimated to incur compliance costs of less than 1 percent of revenues. Under the most stringent option (Option 3), 263 small entities may experience an impact: 4 entities are estimated to incur costs greater than 3 percent of revenues, 11 entities between 1 to 3 percent, and 248 less than 1 percent. These results are summarized in Table XVI-2, below (same as Table VIII-12). Details of this analysis are presented in Section VIII and the RIA found in the docket.
Although this proposed rule would not have a significant economic impact on a substantial number of small entities, EPA nonetheless has tried to reduce the impact of this proposed rule on small entities. The proposed rule includes subcategory-specific production thresholds that would have less stringent effluent limitations for smaller production facilities. Facilities under certain production thresholds may have no national effluent limitations.
Although not required by the RFA to convene a Small Business Advocacy Review (SBAR) Panel because the EPA has now determined that this proposal would not have a significant economic impact on a substantial number of small entities, the EPA originally convened a panel to obtain advice and recommendations from small entity representatives potentially subject to this rule's requirements. The 5 panel recommendations are briefly summarized here, and a copy of the SBAR Panel Report is included in the docket for this rulemaking (USEPA. 2023. DCN MP00347). The Panel recommended EPA: (1) Exclude small and very small firms from regulation and take public comment on production thresholds so as not to cause substantial economic hardship on small entities; (2) Set regulations based on wastewater flows as an alternative to production thresholds; (3) Consider and take comment on a longer or flexible timeline for small entities to meet proposed regulations; (4) Consider and take comment on conditional limits for MPP facilities that discharge to POTWs that already have nitrogen and phosphorus treatment capabilities equivalent to the proposed rule in place; (5) Publish compliance guides to help facilities determine rule applicability and requirements and to take comment on what information would be beneficial for small entities.
Although not required by the RFA, the EPA prepared an initial regulatory flexibility analysis (IRFA) that examines the impact of the proposed rule on small entities along with regulatory alternatives that could minimize that impact. The IRFA describes why this action is being considered, the objectives and legal basis for the proposed rule, the small entities to which the proposed rule applies, the compliance requirements, other relevant Federal rules, potential economic impacts on small entities, how regulatory options developed by EPA served to mitigate the impact of the regulatory options on small entities, and uncertainties and limitations. The
In accordance with RFA requirements and as it has consistently done in developing effluent limitations guidelines and standards, EPA subsequently assessed whether the proposed regulatory options would have “a significant impact on a substantial number of small entities” (SISNOSE). EPA performed this assessment for each of the proposed options and as described above certified no SISNOSE.
This action contains a federal mandate under UMRA, 2 U.S.C. 1531-1538, that may result in expenditures of $100 million or more for State, local and Tribal governments, in the aggregate, or the private sector in any one year. Accordingly, the EPA has prepared a written statement required under section 202 of UMRA. The statement is included in the docket for this action and briefly summarized here.
An industrial user (IU) is a nondomestic source of indirect discharge into a POTW, and in this rule is the meat and poultry products facility discharger. The Control Authority may be the POTW, the State, or EPA, depending on whether the POTW or the State is approved by EPA to administer the pretreatment program. The Control Authority is the POTW in cases where the POTW has an approved pretreatment program. The Control Authority is the State, where the POTW has not been approved to administer the pretreatment program, but the State has been approved. The Control Authority is EPA where neither the POTW nor the State have been approved to administer the pretreatment program. The Approval Authority is the State (Director) in an NPDES authorized State with an approved pretreatment program, the EPA regional administrator in a non-NPDES authorized State, or NPDES State without an approved State pretreatment program.
Typically, an IU is responsible for demonstrating compliance with pretreatment standards by performing self-monitoring, submitting reports and notifications to its Control Authority, and maintaining records of activities associated with its discharge to the POTW. The Control Authority is the regulating authority responsible for implementing and enforcing pretreatment standards. The General Pretreatment Regulations require certain minimum oversight of IUs by Control Authorities. The required minimum oversight includes receipt and analysis of reports and notifications submitted by IUs, random sampling and analyzing effluent from IUs, and conducting surveillance activities to identify occasional and continuing noncompliance with pretreatment standards. The Control Authority is also responsible for taking enforcement action as necessary.
For IUs that are designated as Significant Industrial Users (SIUs),
The Approval Authority is responsible for ensuring that POTWs comply with all applicable pretreatment program requirements. Among other things, the Approval Authority receives annual pretreatment reports from the Control Authority. These reports must identify which IUs are CIUs. In accordance with 40 CFR 122.44(j)(1) all POTWs are required to “identify, in terms of character and volume of pollutants, any SIU” and include them on their NPDES Application form, 122.21(j)(6). Approved POTW Control Authorities have legal authority and procedures to identify and control such IUs (40 CFR 403.8(f)(1) & (2)). Therefore, this proposed MPP rule requires little extra burden on Control Authorities to identify the subset of SIUs that are subject to categorical pretreatment standards and to apply the requirements to them.
This action is not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments.
This action does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
This action does not have Tribal implications as specified in E.O. 13175. It would not have substantial direct effects on Tribal governments, on the relationship between the Federal Government and the Indian Tribes, or the distribution of power and responsibilities between the Federal Government and Indian Tribes as specified in E.O. 13175. EPA is not aware of any facility subject to these proposed ELGs that is owned by Tribal governments. Thus, E.O. 13175 does not apply to this action.
Consistent with the EPA Policy on Consultation and Coordination with Indian Tribes, EPA consulted with Tribal officials during the development of this action. EPA initiated consultation and coordination with federally recognized Tribal governments in January 2023. EPA shared information about the Meat and Poultry Products effluent guidelines rulemaking (MPP ELG) with all federally recognized Tribes by sending a letter and detailed plan describing the rulemaking, the potential impact to Tribes, and opportunities for Tribal involvement. EPA performed a proximity-based screening analysis to determine which Tribes and Tribal lands are the most likely to be impacted by MPP industrial activity and/or changes to the MPP ELG. Tribes that were identified as being in proximity
E.O. 13045 directs federal agencies to include an evaluation of the health and safety effects of the planned regulation
EPA reviewed epidemiological studies to determine whether exposures to pollutants in MPP wastewater are associated with disproportionate health risks among children. EPA identified evidence of disproportionate health risks among children from exposure to nitrates, which can result from the discharge of nitrogen from MPP facilities. Research has shown an association between exposure to nitrates in drinking water and increased incidence of birth defects and methemoglobinemia (“blue baby syndrome”) in children (Fears. 2021),
Nutrient concentrations in private well water may be impacted by any increase in land application of sludges expected to occur under proposed rule options. Because land application locations and frequencies change over time, EPA was not able to estimate potential impacts of this rulemaking on private well water quality, and therefore the health of children in affected households. Taken together, it is underdetermined how children may be impacted under the implementation of this rule.
This action is not a significant energy action under E.O. 13211, because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. As discussed in Section X, EPA estimates that compliance with this proposed rule would create a small increase in nationwide energy consumption for MPP facilities. EPA estimates an approximate increase of 104,208 MWh per year for wastewater treatment. By comparison, electric power generation facilities generated 4,108 billion megawatt hours of electric power in the United States in 2021 (EIA. 2021).
This rulemaking does not involve technical standards.
The EPA believes that the human health or environmental conditions that exist prior to this action result in or have the potential to result in disproportionate and adverse human health or environmental effects on communities with environmental justice (EJ) concerns. Literature on the MPP industry showed that facilities are commonly (Winders and Abrell. 2021)
The following acronyms, abbreviations, and terms are used in this preamble. These terms are provided for convenience to the reader, and they are not regulatory definitions with the force or effect of law, nor are they to be used as guidance for implementation of this proposed rule.
Environmental protection; Meat and meat products; Poultry and poultry products; Waste treatment and disposal; Water pollution control.
For the reasons stated in the preamble, the Environmental Protection Agency proposes to amend 40 CFR part 432 as follows:
33 U.S.C. 1311, 1314, 1316, 1317, 1318, 1342 and 1361.
The additions read as follows:
(c) E. coli means the bacterial count, as determined by approved methods of analysis for Parameter 4 in Table 1A in 40 CFR 136.3.
(d) Fecal coliform means the bacterial count, as determined by approved methods of analysis for Parameter 1 in Table 1A in 40 CFR 136.3.
(l)(7) Total Phosphorus means the total of particulate and soluble phosphorus
(m) The term nitrification means oxidation of ammonium salts to nitrites (via Nitrosomas bacteria) and the further oxidation of nitrite to nitrate via Nitrobacter bacteria.
(n) The term denitrification means the microbial process of reducing nitrate and nitrite to gaseous nitrous oxide, and nitrogen gas.
(o) The term phosphorus removal means removal of particulate and soluble phosphorus by biological uptake and solids settling and removal.
(a) * * *
(1) * * *
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that slaughters more than 50 million pounds per year (in units of LWK) that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for existing sources (PSES):
Facilities subject to the 2004 new source performance standards in §§ 432.15 of this part continue to be subject to those standards. These 2004 new sources are also subject to revised BPT and BAT effluent limitations specified in § 432.12 and 432.13 of this part (for direct dischargers) or the revised pretreatment standards specified in § 432.14 of this part (for indirect dischargers). Except as provided in paragraph (c) of this section, any source that is a new source subject to this subpart must achieve the following performance standards:
(b) * * *
(1) In the case of process wastewater associated with the slaughtering of animals on-site or the processing of the carcasses of animals slaughtered on-site, the standards for BOD
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that slaughters more than 50 million pounds per year (in units of LWK) that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for existing sources (PSNS):
(a) * * *
(1) * * *
Except as provided in 40 CFR 125.30 through 125.32, any existing point source subject to this subpart that slaughters more than 50 million pounds per year (in units of LWK) must achieve the following effluent limitations representing the application of BAT: Limitations for ammonia (as N), total phosphorus, E. coli, and total nitrogen are the same as specified in § 432.13.
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that slaughters more than 50 million pounds per year (in units of LWK) that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for existing sources (PSES): Limitations for BOD
The revisions read as follows:
Facilities subject to the 2004 new source performance standards in this section continue to be subject to those standards. These 2004 new sources are also subject to revised BPT and BAT effluent limitations specified in §§ 432.22 and 432.23 (for direct dischargers) or the revised pretreatment standards specified in § 432.24 (for indirect dischargers). Except as provided in paragraph (c) of this section, any source that is a new source subject to this subpart must achieve the following performance standards:
(b) * * *
(1) In the case of process wastewater associated with the slaughtering of animals on-site or the processing of the carcasses of animals slaughtered on-site, the standards for BOD
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that slaughters more than 50 million pounds per year (in units of LWK) that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for existing sources (PSES): Limitations for BOD
(a) * * *
(1) * * *
Except as provided in 40 CFR 125.30 through 125.32, any existing point source subject to this subpart that slaughters more than 50 million pounds per year (in units of LWK) must achieve the following effluent limitations representing the application of BAT: the limitations for ammonia (as N), total phosphorus, E. coli, and total nitrogen are the same as specified in § 432.13.
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that slaughters more than 50 million pounds per year (in units of LWK) that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for existing sources (PSES): Limitations for BOD
Facilities subject to the 2004 new source performance standards in §§ 432.35 of this part continue to be subject to those standards. These 2004 new sources are also subject to revised BPT and BAT effluent limitations specified in §§ 432.32 and 432.33 (for direct dischargers) or the revised pretreatment standards specified in § 432.34 (for indirect dischargers). Except as provided in paragraph (c) of this section, any source that is a new source subject to this subpart must achieve the following performance standards:
(b) * * *
(1) In the case of process wastewater associated with the slaughtering of animals on-site or the processing of the carcasses of animals slaughtered on-site, the standards for BOD
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that slaughters more than 50 million pounds per year (in units of LWK) that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for existing sources (PSES): Limitations for BOD
(a) * * *
(1) * * *
Except as provided in 40 CFR 125.30 through 125.32, any existing point source subject to this subpart that slaughters more than 50 million pounds per year (in units of LWK) must achieve the following effluent limitations representing the application of BAT: Limitations for ammonia (as N), total phosphorus, E. coli, and total nitrogen are the same as specified in
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that slaughters more than 50 million pounds per year (in units of LWK) that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for existing sources (PSES): Limitations for BOD
Facilities subject to the 2004 new source performance standards in §§ 432.45 of this part continue to be subject to those standards. These 2004 new sources are also subject to revised BPT and BAT effluent limitations specified in § 432.42 and 432.43 of this part (for direct dischargers) or the revised pretreatment standards specified in § 432.44 of this part (for indirect dischargers Except as provided in paragraph (c) of this section, any source that is a new source subject to this subpart must achieve the following performance standards:
(b) * * *
(1) In the case of process wastewater associated with the slaughtering of animals on-site or the processing of the carcasses of animals slaughtered on-site, the standards for BOD
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that slaughters more than 50 million pounds per year (in units of LWK) that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for existing sources (PSES): Limitations for BOD
(b) Facilities that generate more than 50 million pounds per year of finished products must achieve the following effluent limitations:
(b) Facilities that generate more than 50 million pounds per year of finished products must achieve the following effluent limitations:
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that processes more than 50 million pounds per year that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for existing sources (PSES):
Facilities subject to the 2004 new source performance standards specified in § 432.65 continue to be subject to those standards. These 2004 new sources are also subject to revised BPT and BAT effluent limitations specified in §§ 432.62 and 432.63 (for direct dischargers) or the revised pretreatment standards in § 432.64 (for indirect dischargers). Except as provided in paragraph (c) of this section, any source that is a new source subject to this subpart must achieve the following performance standards:
(b) Facilities that generate more than 50 million pounds per year of finished products must achieve the limitations for BOD
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that processes more than 50 million pounds per year that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for new sources (PSNS):
(b) Facilities that generate more than 50 million pounds per year of finished products must achieve the following effluent limitations:
(b) Facilities that generate more than 50 million pounds per year of finished products must achieve the following effluent limitations:
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that processes more than 50 million pounds per year that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for existing sources (PSES):
Facilities subject to the 2004 new source performance standards in § 432.75 continue to be subject to those standards. These 2004 new sources are also subject to revised BPT and BAT effluent limitations specified in §§ 432.72 and 432.73 (for direct dischargers) or the revised pretreatment standards specified in § 432.74 (for indirect dischargers). Except as provided in paragraph (c) of this section, any source that is a new source subject to this subpart must achieve the following performance standards:
(b) Facilities that generate more than 50 million pounds per year of finished products must achieve the limitations for BOD
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that processes more than 50 million pounds per year that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for new sources (PSNS):
(b) Facilities that generate more than 50 million pounds per year of finished products must achieve the following effluent limitations:
(b) Facilities that generate more than 50 million pounds per year of finished products must achieve the following effluent limitations:
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that processes more than 50 million pounds per year that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for existing sources (PSES):
Facilities subject to the 2004 new source performance standards in § 432.85 continue to be subject to those standards. These 2004 new sources are also subject to revised BPT and BAT effluent limitations specified in §§ 432.82 and 432.83 (for direct dischargers) or the revised pretreatment standards specified in § 432.84 (for indirect dischargers). Except as provided in paragraph (c) of this section, any source that is a new source subject to this subpart must achieve the following performance standards:
(b) Facilities that generate more than 50 million pounds per year of finished products must achieve the limitations for BOD
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that processes more than 50 million pounds per year that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for new sources (PSNS):
(b) Facilities that generate more than 50 million pounds per year of finished products must achieve the following effluent limitations:
(b) Facilities that generate more than 50 million pounds per year of finished products must achieve the following effluent limitations:
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that processes more than 50 million pounds per year that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for existing sources (PSES):
Facilities subject to the 2004 new source performance standards in §§ 432.95 of this part continue to be subject to those standards. These 2004 new sources are also subject to revised BPT and BAT effluent limitations specified in § 432.92 and 432.93 of this part (for direct dischargers) or the revised pretreatment standards specified in § 432.94 of this part (for indirect dischargers). Except as provided in paragraph (c) of this section, any source that is a new source subject to this subpart must achieve the following performance standards:
(b) Facilities that generate more than 50 million pounds per year of finished products must achieve the limitations for BOD
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that processes more than 50 million pounds per year that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for new sources (PSNS):
(a) Except as provided in 40 CFR 125.30 through 125.32, any existing point source subject to this subpart must achieve the following effluent limitations representing the application of BPT:
Except as provided by 40 CFR 125.30 through 125.32, any existing point source subject to this subpart must achieve the following effluent limitations representing the application of BAT:
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that uses raw material at rates more than 10 million pounds per year that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for existing sources (PSES):
(a) Facilities subject to the 2004 new source performance standards in § 432.105 continue to be subject to those standards. These 2004 new sources are also subject to revised BPT and BAT effluent limitations specified in §§ 432.102 and 432.103 (for direct dischargers) or the revised pretreatment standards specified in § 432.104 (for indirect dischargers). Except as provided in paragraph (c) of this section, any source that is a new source subject to this subpart must achieve the following performance standards:
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that uses raw material at rates more than 10 million pounds per year that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for new sources (PSNS):
Except as provided in 40 CFR 125.30 through 125.32, any existing point source subject to this subpart that slaughters more than 100 million pounds per year (in units of LWK) must achieve the following effluent limitations representing the application of BPT:
Except as provided in 40 CFR 125.30 through 125.32, any existing point source subject to this subpart that slaughters more than 100 million pounds per year (in units of LWK) must achieve the following effluent limitations representing the application of BAT:
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that slaughters more than 100 million pounds per year (in units of LWK) that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for existing sources (PSES):
Facilities subject to the 2004 new source performance standards in § 432.115 continue to be subject to those standards. These 2004 new sources are also subject to revised BPT and BAT effluent limitations specified in §§ 432.112 and 432.113 (for direct dischargers) or the revised pretreatment standards specified in § 432.114 (for indirect dischargers). Any source that is a new source subject to this subpart must achieve the following performance standards:
(b) Facilities that slaughter more than 100 million pounds per year (in units of LWK) must achieve the following performance standards:
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that slaughters more than 100 million pounds per year (in units of LWK) that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for new sources (PSNS):
Except as provided in 40 CFR 125.30 through 125.32, any existing point source subject to this subpart that further processes more than 7 million pounds per year (in units of finished product) must achieve the following effluent limitations representing the application of BPT:
Except as provided in 40 CFR 125.30 through 125.32, any existing point source subject to this subpart that further processes more than 7 million pounds per year (in units of finished product) must achieve the following effluent limitations representing the application of BAT:
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that processes more than 7 million pounds per year (in units of LWK) that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for existing sources (PSES):
Facilities subject to the 2004 new source performance standards in §§ 432.125 of this part continue to be subject to those standards. These 2004 new sources are also subject to revised BPT and BAT effluent limitations specified in § 432.122 and 432.123 of this part (for direct dischargers) or the revised pretreatment standards specified in § 432.124 of this part (for indirect dischargers). Any source that is a new source subject to this subpart must achieve the following performance standards:
(b) Facilities that further process more than 7 million pounds per year (in units of finished product) must achieve the following performance standards:
Except as provided in 40 CFR 403.7 and 403.13, any existing source subject to this subpart that processes more than 7 million pounds per year (in units of LWK) that introduces pollutants into a publicly owned treatment works must comply with 40 CFR part 403 and must achieve the following pretreatment standards for new sources (PSNS):