Committee for Purchase From People Who Are Blind or Severely Disabled
National Oceanic and Atmospheric Administration
Pipeline and Hazardous Materials Safety Administration
Presidential Documents
Food and Drug Administration
Health Resources and Services Administration
Indian Health Service
National Institutes of Health
Indian Health Service
Fish and Wildlife Service
Land Management Bureau
Ocean Energy Management Bureau
Surface Mining Reclamation and Enforcement Office
Federal Highway Administration
Federal Motor Carrier Safety Administration
Pipeline and Hazardous Materials Safety Administration
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Federal Labor Relations Authority.
Final rule.
The Federal Labor Relations Authority (FLRA) is engaged in an initiative to make electronic filing or “eFiling” available to parties in all cases before the FLRA. Making eFiling available is another way in which the FLRA is using technology to improve the customer-service experience. These eFiling enhancements are expected to increase efficiency by reducing procedural filing errors and processing delays.
Effective March 23, 2015.
Written comments about this final rule can be emailed to
Gina Grippando, Counsel for Regulatory and Public Affairs, Federal Labor Relations Authority, Washington, DC 20424, (202) 218–7776.
In the first stage of its eFiling initiative, the FLRA enabled parties to use eFiling to file requests for Federal Service Impasses Panel assistance in the resolution of negotiation impasses. See 77 FR 5987 (Feb. 7, 2012). The second stage of the FLRA's eFiling initiative provided parties with an option to use eFiling to electronically file 11 types of documents in cases filed with the FLRA's three-member adjudicatory body, the Authority. Parties may now file such documents. See 77 FR 26430 (May 4, 2012). The third stage of the FLRA's eFiling initiative provided parties with the option to use eFiling to electronically file certain documents involved in representation and unfair labor practice proceedings. See 77 FR 37751 (June 25, 2012).
The fourth stage of the FLRA's eFiling initiative is the subject of this Final Rule. In this stage, parties will be able to use the FLRA's eFiling system to file certain documents involved in unfair labor practice proceedings before the FLRA's Office of Administrative Law Judges. This rule modifies the FLRA's existing regulations to allow eFiling of those documents. As the FLRA's eFiling procedures develop, the revisions set forth in this action may be evaluated and revised further.
Sectional analysis of the amendments and revisions to part 2429, Miscellaneous and General Requirements, are as follows:
This section is amended to reflect the addition of eFiling as an authorized means of filing documents with the Office of Administrative Law Judges pursuant to paragraph (f)(15) of this section and corrects the person with whom such documents must be filed by replacing appropriate administrative law judge with Chief Administrative Law Judge.
This section is added to reflect that documents filed with the Office of Administrative Law Judges are now documents that can be filed using eFiling as an alternative to the filing methods discussed in paragraph (e) of this section.
As described above, this amendment updates the regulations to merely expand the Federal Labor Relations Authority's current electronic filing system. This rule pertains to agency organization, procedure, or practice, and it is exempt from prior notice and public comment pursuant to 5 U.S.C. 553(b)(A).
The FLRA is an independent regulatory agency, and as such, is not subject to the requirements of E.O. 12866.
The FLRA is an independent regulatory agency, and as such, is not subject to the requirements of E.O. 13132.
Pursuant to section 605(b) of the Regulatory Flexibility Act,
This rule change will not result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This action is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996. This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.
The amended regulations contain no additional information collection or record-keeping requirements under the Paperwork Reduction Act of 1995, 44 U.S.C. 3501,
Administrative practice and procedure, Government employees, Labor management relations.
For the reasons stated in the preamble, the FLRA amends 5 CFR part 2429, as follows:
5 U.S.C. 7134; § 2429.18 also issued under 28 U.S.C. 2112(a).
(d) Unless electronically filed pursuant to paragraph (f)(15) of this section, a document filed with the Office of Administrative Law Judges pursuant to this subchapter shall be submitted to the address for the Chief Administrative Law Judge, as set forth in the appendix.
(f) * * *
(15) Documents submitted to the Office of Administrative Law Judges under 5 CFR part 2423, including answers to complaints, motions, briefs, pre-hearing disclosures, stipulations, and any other documents as permitted by the eFiling system for the Office of Administrative Law Judges.
Postal Service
Final rule.
This final rule revises the Postal Service's current procedures concerning the expansion, relocation, and construction of Post Offices
Richard Hancock, Real Estate Specialist, U.S. Postal Service®, at
On October 27, 2014, the Postal Service published a proposed rule (79 FR 63880) to revise the Postal Service's procedures concerning the expansion, relocation, and construction of Post Offices to clarify those procedures, and to require the Postal Service to provide more information to communities and elected officials about certain types of projects earlier in the planning phase. The proposed rule would require the Postal Service to notify communities and officials, and solicit and consider their input, regarding proposals to relocate retail services or add a new retail service facility. As a significant change from the current rule, the proposed rule would require the Postal Service to provide information about the anticipated new location for relocated services or for a new retail service facility when the Postal Service first gives notice of the proposal. The Postal Service established a 30-day comment period and invited comments on the proposed rule. The Postal Service received five responses.
Below is a summary of the comments, in order of the specific sections of the proposed rule to which they relate.
One respondent asserted that there is no substantive reason for changing the current rule and that the Postal Service should retain the current rule. The respondent suggested that defining “customer service facility” is unnecessary.
We disagree with the comment. The Postal Service Office of Inspector General (OIG) specifically recommended that the Postal Service revise its regulations to enhance transparency and public input. Based on past experience, we agreed with the OIG's recommendation. The current rule does not define “customer service facility” and as the Postal Service evolves to adapt to a fast changing marketplace, providing definitions in the new rule will clarify when the new rule applies.
Another respondent commented that the new rule should define “relocation” and the definition should state a maximum permitted distance for relocating retail services.
We expect readers of the new rule will understand “relocation” to have its ordinary dictionary meaning. We also disagree that the new rule should include an arbitrary distance limitation because such a limitation could prevent appropriately accounting for important factors, such as the setting (urban, suburban, or rural), site conditions (public transit availability, location on a one-way street, etc.) and the proximity of other Postal Service retail locations.
One respondent suggested that some causes of relocation added to the “emergency” category in the proposed rule are inconsistent with a definition of “emergency” as a sudden event requiring immediate action. The respondent also expressed concern that expanding the “emergency” category increases the universe of relocations that can occur without community input because the new rule, as proposed, provided for the Postal Service to determine when it is prudent to obtain community input on the long-term location after an emergency relocation. The respondent questioned adding examples of relocations arising from safety concerns without limiting those concerns to some specified level of seriousness, and the respondent urged retaining a 180-day limit for both temporary and emergency relocations.
We appreciate the concerns raised in these comments. The current rule lists “lease termination” as an example of an event that may require an emergency relocation, but the current rule is silent on lease expirations. Nor does the current rule recognize that some lessors reserve a right during the lease term to require the Postal Service to move to a different location,
We disagree with the portion of the comment concerning relocations arising from safety concerns. Because a relocation is a significant project, the Postal Service would not undertake a relocation without good cause. We place great importance on the security of the mail and the safety of our customers and personnel. We see no reason to identify arbitrarily a threshold level of risk to persons or the mail.
With regard to applying a 180-day limitation on the duration of a relocation, such a limitation is appropriate for temporary relocations as described in the rule because temporary relocations can be expected to require less than 180 days to fulfill their purposes. In contrast, a 180-day limitation would be arbitrary and imprudent for emergency relocations because the required duration of emergency relocations is not predictable, and the actual required duration may depend on the severity of the event, such as an earthquake. With regard to provisional relocations, the final rule adds a requirement to undertake the community input process within 180 days, which allows time for the Postal Service to tentatively identify potential permanent relocation sites, but assures that provisional relocations will not become permanent without undertaking the community input process.
One respondent urged the Postal Service to revise the new rule to require personal visits to local officials to discuss proposed projects.
The new rule requires the Postal Service to provide local elected officials with a written outline of the Postal Service's proposed project and to offer to discuss the project with the officials. In the Postal Service's experience, not all local officials welcome a personal visit, and a personal visit is not always the best use of scarce resources. Therefore, the new rule permits the Postal Service the flexibility to personally visit officials or to discuss the same information through other forms of communication.
Another comment expressed concern that without a requirement for the Postal Service to notify lessors when the Postal Service proposes to relocate out of a leased facility, the new rule could deprive some lessors of an opportunity for comment on the proposed relocation.
Under the proposed rule, lessors who reside in the community would receive the same notice as the rest of the community, making a separate notice unnecessary. However, the comment raises concern for lessors that are located outside the community and lease a facility to the Postal Service in the community. Those lessors may be unaware of a notice and, therefore, miss an opportunity to comment. The Postal Service values its business relations as well as its community relations, so the final rule incorporates a requirement to notify lessors, except when the lessor itself has terminated or declined to renew a Postal Service lease and therefore is presumed to anticipate a relocation.
One comment pertained to notifying customers in “exceptional circumstances,”
While the proposed rule incorporated flexibility for notifications in these exceptional circumstances, we agree that in sparsely populated areas some customers may visit the affected retail service facility only infrequently and miss the notice. Therefore, the final rule requires the Postal Service to mail notice to customers in such exceptional circumstances.
One respondent agreed that the public will benefit from the new rule's requirement for the Postal Service to include the proposed relocation site in the information provided to a community about a proposed relocation, but then asserted that the new rule is a step backwards for community input because it requires the Postal Service to advance the planning process to site selection before presenting the relocation proposal to the community. This respondent also objected to permitting the Postal Service to identify a relocation “area” and asserted that the new rule will not change current Postal Service practice.
We disagree with these comments. Some communities and elected officials, as well as the Office of Inspector General, strongly suggested that communities could not effectively provide input on a proposed relocation decision without an understanding of the proposed new location for the retail services. To address that concern, the new rule requires the Postal Service to identify and discuss the proposed new site(s) or area, or both, for the relocated retail services as part of the discussion of the relocation proposal, which is a significant change from current practice. Necessarily then, under the new rule the Postal Service must tentatively identify a relocation site or area, or both, before presenting the proposal to the community. However, the requirement to identify a potential site and then obtain community input before committing to that site can create a conundrum for the Postal Service in some markets. For example, in some markets, identifying only one proposed site during the community input process could undercut the Postal Service's bargaining position with that site's landlord, which could force the Postal Service to agree to an unfairly high rent. As another example, in markets where landlords are rapidly leasing the available spaces that are suitable for a retail postal facility, a tentatively identified site may no longer be available for lease at the conclusion of the community input process. Accordingly, for proposed relocations and for additions of retail service facilities, the new rule permits the Postal Service to identify more than one site and/or area, which allows the Postal Service to mitigate those identification risks, while also giving the community an opportunity to voice its preference among the proposed sites or areas. The Postal Service then would consider that community input before selecting a specific location.
One comment advocated extending the public comment period, noting that 15 days is not enough time for a public comment period.
We agree that the current rule's 15-day comment period following the public meeting is too brief. Therefore, the new rule provides a 30-day period following the public meeting for the community and their elected officials to appeal the Postal Service's tentative decision proposing to relocate retail
One respondent objected that the new rule calls for comments on whether the Postal Service proposal is the optimal solution for the “identified need,” asserting that phrase likely means the Postal Service's needs, not the “global needs” of the community or the need for service furthering the “broader public or common good.”
As set forth by Congress in 39 U.S.C. 101, 403 and 404(b), the Postal Service's mission is to provide, on a self-sufficient basis without tax support, universal postal services efficiently and economically. The new rule will help focus comments, and the Postal Service's consideration of the comments, on the matters that are relevant to the Postal Service's mission.
Two comments sought a more elaborate appeal process, with one suggesting the Postal Service create public project files to serve as the basis for appeals and a second respondent arguing that the new rule should require a review of the public's comments and appeals by someone who had no prior involvement in the project and who is insulated from career repercussions.
The purpose of the new rule is to incorporate consideration of community input into Postal Service decisions to relocate retail services or add a retail service facility, not to create an adversarial process pitting community input against Postal Service objectives. The final rule requires the Postal Service to present project information to the community, its local elected officials, and when applicable, a lessor, and solicit and consider their input. Such input presumably will reflect the concerns important to those parties, but it cannot be expected to reflect the operational and business factors the Postal Service must also take into account. Ultimately, it is the Postal Service that is responsible for fulfilling its statutory obligations to provide efficient and economical universal postal services. The final rule provides for the Postal Service to make an informed decision by requiring consideration of community input.
Another comment argued that the new rule should give priority to remaining at the same site or at least in the downtown area.
An arbitrary requirement to give priority to remaining at the same site could thwart a project that would more efficiently and economically provide services to the community. The new rule, like the current rule, focuses on retail services in the community, not at a particular site, in furtherance of the Postal Service's statutory obligation to provide universal service efficiently and economically.
One respondent urged the Postal Service to revise the new rule to mirror the procedures under 39 U.S.C. 404(d) that apply to a Postal Service decision to close or consolidate a Post Office. Specifically, the respondent argued for adopting those same requirements for notifying communities, for separate public meetings, and for public comment periods. Another respondent suggested that the new definition, “retail service facility,” does not comport with 39 U.S.C. 404(d). Another comment suggested the “retail service facility” definition should expressly exclude consolidations of postal facilities.
This final rule pertains only to relocations of retail services and additions of retail service facilities. It is separate from the rules that apply to discontinuances of Post Offices, which can have a significantly greater effect on a community. Accordingly, this final rule, including its definitions, does not adopt the requirements for discontinuances under 39 U.S.C. 404(d).
The new rule requires posting notice in the affected postal facility and issuing a news release outlining the proposal to one or more news media serving the community. In the case of a relocation, posting notice in the affected postal facility should be sufficient in most instances to alert the customers who visit the postal facility, and they are the customers who likely would be most affected by the relocation. In contrast, customers who use the USPS® Web site may be unaffected by a relocation because the Web site offers all the retail postal services they would purchase at a physical retail location.
The new rule permits the Postal Service to present the proposal either as part of the agenda of a scheduled community meeting, or at a separate meeting scheduled by the Postal Service. Such flexibility is appropriate to allow the Postal Service to accommodate local officials' preference. Although in our experience presentations at regular community meetings often are well attended, to further ensure community members are aware of the presentation and have an opportunity for input, the new rule bolsters notice and comment period requirements. Where the current rule requires 7 days' advance notice of the meeting, the new rule increases the requirement to 15 days' advance notice, to be published in local news media and posted in the affected facility. Where the current rule requires a 15-day public comment period following the public meeting, the new rule requires a 30-day public comments and appeals period.
Three respondents contended that the new rule should expressly adopt a position that the National Historic Preservation Act requires the Postal Service to engage in the Section 106 consultation process at the time the Postal Service considers relocation.
The Postal Service highly values its historic properties and follows the requirements of Sections 106, 110, and 111 of the National Historic Preservation Act and its implementing regulations. As the new rule states, those requirements are independent of the requirements set forth in the rule for community input regarding relocations and adding retail service facilities. Because the National Historic Preservation Act and its implementing regulations sufficiently express their requirements, there is no need to restate those requirements in the final rule.
To continue operating on a self-funding basis without tax dollars and to fulfill its statutory obligations, the Postal Service must make efficient and economical use of its postal facilities. As a result, the Postal Service will have an ongoing need to relocate retail services and to add retail service facilities to account for factors such as population shifts and growth, and a dynamic marketplace with changing customer needs and evolving technologies and retail servicing options. Accordingly, the Postal Service is publishing this final rule to clarify the rule's application and procedures for relocating retail services and adding retail service facilities. At the same time, this final rule also responds to concerns that communities and their elected officials should have information about the proposed new location for relocated retail postal services in order to comment effectively on a proposal to relocate those services. This final rule provides for additional transparency, clarity, and opportunity for soliciting and considering public input as the Postal Service pursues its mission to efficiently and economically provide universal postal services to the nation.
Organization and functions (Government agencies), Retail service facilities.
Accordingly, the Postal Service amends 39 CFR part 241 as set forth below.
39 U.S.C. 101, 401, 403, 404, 410, 1001.
(a)
(2) The rules of this paragraph (a)(2) apply to temporary additions of retail service facilities, temporary or emergency relocations of retail services, and to provisional relocations of retail services.
(i) The Postal Service may implement temporary additions or relocations without undertaking the process in paragraph (c) of this section when necessary to support Postal Service business for holidays, special events, or overflow business. Temporary additions and relocations normally will be limited to 180 days in duration. Any additional incremental time periods of up to 180 days each must be approved by the vice president, Facilities or his designee.
(ii) The Postal Service may implement emergency relocations without first undertaking the process in paragraph (c) of this section when the Postal Service determines relocation is required to protect Postal Service business due to events such as earthquakes, floods, fire, potential or actual OSHA violations, safety factors, environmental causes, other business disrupting events, or as necessary to protect employees, customers, or the security of the mail. Following an emergency relocation, as soon as the Postal Service determines it is feasible to identify the long-term location for the retail services, the Postal Service will make a tentative decision to remain in the emergency relocation site on a long-term basis, to return to the original retail service facility (if feasible), or to relocate to another site. Unless the decision is to return to the original retail service facility, the Postal Service then will follow the process in paragraph (c) of this section with respect to collecting and considering community input on a proposal to implement that decision.
(iii) The Postal Service may implement provisional relocations in connection with lease terminations or expirations, or in connection with a lessor exercising a right to require the Postal Service to move to alternate premises, when the Postal Service has not already undertaken the process in paragraph (c) of this section for such relocations. Not later than 180 days following a provisional relocation, the Postal Service will make a tentative decision to remain in the provisional relocation site on a long-term basis or to relocate to another site. After that decision, the Postal Service will follow the process in paragraph (c) of this section with respect to collecting and considering community input on a proposal to implement that decision.
(3) This section applies to tentative decisions described in paragraphs (a)(1) and (a)(2) made on or after March 23, 2015. The rules under § 241.4 in effect prior to that date shall apply to projects described in paragraph (a) of this section undertaken prior to that date.
(b)
(c)
(1)
(2)
(3)
(i)(A) If the proposal concerns relocation, then the Postal Service will:
(
(
(
(B) The Postal Service may identify more than one potential relocation site and/or area, for example, when the Postal Service has not selected among competing sites.
(ii)(A) If the proposal concerns adding a new retail service facility for a community, then the Postal Service will:
(
(
(
(
(B) The Postal Service may identify more than one potential site and/or area, for example, when the Postal Service has not selected yet among competing sites.
(4)
(5)
(d)
(i) Section 106 of the National Historic Preservation Act, 16 U.S.C. 470, Executive Order 12072, and Executive Order 13006;
(ii) 39 U.S.C. 404(d) and 39 CFR 241.3; or
(iii) 39 U.S.C. 409(f);
(2) These are independent policies or obligations of the Postal Service that are not dependent upon a relocation or addition of a retail service facility.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is taking final action to disapprove a portion of State Implementation Plan (SIP) revisions submitted by the State of Wyoming on May 10, 2011. This submittal revises the Wyoming Air Quality Standards and Regulations (WAQSR) that pertain to the issuance of Wyoming air quality permits for major sources in nonattainment areas. Also in this action, EPA is approving SIP revisions submitted by the State of Wyoming on February 13, 2013, and on February 10, 2014. These submittals revise the WAQSR with respect to sulfur dioxide (SO
This final rule is effective March 23, 2015.
EPA has established a docket for this action under Docket ID No. EPA–R08–OAR–2014–0761. All documents in the docket are listed in the
Kevin Leone, Air Program, Mailcode 8P–AR, Environmental Protection Agency, Region 8, 1595 Wynkoop Street, Denver, Colorado 80202–1129, (303) 312–6227, or
For the purpose of this document, we are giving meaning to certain words or initials as follows:
(i) The words or initials
(ii) The initials
(iii) The initials
(iv) The words
(v) The initials
(vi) The initials
(vii) The initials
(viii) The initials
(ix) The initials
(x) The initials
(xi) The initials
(xii) The initials
(xiii) The initials
(xiv) The initials
(xv) The initials
(xvi) The words
(xvii) The initials
(xviii) The initials
(xix) The initials
(xx) The initials
In this final rulemaking, we are taking final action to disapprove the addition of Chapter 6, Section 13, Nonattainment permit requirements, to the WAQSR submitted by the State of Wyoming on May 10, 2011. This new section incorporated by reference 40 Code of Federal Regulations (CFR) section 51.165 in its entirety, with the exception of paragraphs (a) and (a)(1), into Wyoming's Chapter 6 Permitting Requirements.
On March 27, 2008, EPA promulgated a revised National Ambient Air Quality Standard (NAAQS) for ozone with an 8-hour concentration limit of 0.075 parts per million (“8-Hour Ozone NAAQS”), and effective July 20, 2012, EPA designated the Upper Green River Basin area of Wyoming as “nonattainment” for the 8-Hour Ozone NAAQS. For nonattainment areas, states are required to submit SIP revisions, including a nonattainment NSR permitting program for the construction and operation of new or modified major stationary sources located in the nonattainment area. On May 10, 2011, before the formal designation of the Green River Basin Area as nonattainment for the 8-Hour Ozone NAAQS, Wyoming submitted a nonattainment new source review (NSR) permitting program SIP revision to EPA.
Our final disapproval will start a two-year clock under CAA section 110(c)(1) for our obligation to promulgate a federal implementation plan (FIP) to correct the deficiency and the 18-month clock for sanctions, as required by CAA section 179(a)(2). These deadlines will be removed when Wyoming submits and we approve a SIP revision addressing the deficiency.
In this final rulemaking action, we are also taking final action to approve revisions submitted by Wyoming on February 13, 2013, and on February 10, 2014. These revisions to the WAQSR include portions of rulemakings R–20 and R–22(b), respectively, as revisions to Wyoming's SIP. Specifically, Wyoming revised Chapter 3, General Emissions Standards, Section 4, Emission standards for sulfur oxides and Section 9, Incorporation by reference in rulemaking R–20; and then again revised Section 9, Incorporation by reference in rulemaking R–22(b).
With respect to Wyoming's February 13, 2013, and February 10, 2014 submittals, EPA is taking final action to approve revisions to WASQR Chapter 3, General Emissions Standards, Section 4, Emission standards for sulfur oxides, and Section 9, Incorporation by reference. Section 4 covers only sulfur oxide emissions from specific sulfuric acid production processes. These WAQSR changes and additions are consistent with the CAA and EPA regulations.
In our November 4, 2014 proposed action (79 FR 65362), we proposed to approve the following revisions to the WASQR: Chapter 3, General Emissions Standards, section 4, Emission standards for sulfur oxides (in R–20); then subsequently amended (in R–22(b)), section 9, Incorporation by reference.
EPA is taking final action to disapprove the portion of Wyoming's May 10, 2011 submittal that adds a new section to the permitting requirements in WAQSR Chapter 6. The new Chapter 6 Section 13, Nonattainment permit requirements, consists of one sentence: “40 CFR part 51.165 is herein incorporated by reference, in its entirety, with the exception of paragraph (a) and paragraph (a)(1).”
As explained in 79 FR 65362, these changes are not consistent with CAA and EPA regulations. Specifically:
1. CAA section 110(a)(2)(C), which requires each state plan to include “a program to provide for . . . the regulation of the modification and construction of any stationary source within the areas covered by the plan as necessary to assure that the [NAAQS] are achieved, including a permit program as required in parts C and D of this subchapter.”
2. CAA section 172(c)(5), which provides that the plan “shall require permits for the construction and operation of new or modified major stationary sources anywhere in the nonattainment area, in accordance with section [173].”
3. CAA section 173, which lays out the requirements for obtaining a permit that must be included in the state's SIP-approved permit program. Because language prefaced by phrases such as “the plan shall provide” or “the plan shall require” does not itself impose requirements on sources, the State's proposed plan revision does not clearly satisfy the requirements of these statutory provisions.
4. CAA section 110(a)(2)(A), which requires that SIPs contain enforceable emissions limitations and other control measures. Under section CAA section 110(a)(2), the enforceability requirement in section 110(a)(2)(A) applies to all plans submitted by a state.
5. CAA section 110(i), which (with certain limited exceptions) prohibits States from modifying SIP requirements for stationary sources except through the SIP revision process.
6. CAA section 172(c)(7), which requires that nonattainment plans—including nonattainment NSR programs required by section 172(c)(5)—are required to meet the applicable provisions of section 110(a)(2), including the requirement in section 110(a)(2)(A) for enforceable emission limitations and other control measures.
7. CAA section 110(l), which provides that EPA cannot approve a SIP revision that interferes with any applicable requirement of the Act. As explained above, the addition of Chapter 6, Section 13 to the Wyoming SIP would interfere with section 110(a)(2) and 110(i) of the Act.
8. Nor does the SIP revision comply with the requirements of 40 CFR 51.165 as the plan fails to impose the regulatory requirements on individual sources, as required by the regulatory provisions.
We provided a detailed explanation of the basis of approval and disapproval in our proposed rulemaking (see 79 FR 65362). We invited comment on all aspects of our proposal and provided a
We received two comment letters during the public comment period. One comment letter was submitted by Bruce Pendery of the Wyoming Outdoor Council and one was submitted by Todd Parfitt, Director of the Wyoming Department of Environmental Quality.
Given this, EPA Region 8 has not assumed authority to permit new major sources of NO
Under 40 CFR 52.21(k), it is expected that the State will issue permits in accordance with Appendix S to 40 CFR part 51 until EPA has approved a SIP submittal meeting the requirements of part D of title I of the CAA (in particular, a SIP submittal meeting the plan requirements that are set out in 40 CFR 51.165 as applicable to ozone nonattainment areas). If WDEQ has not been granted sufficient authority by the Wyoming legislature to issue permits under Appendix S prior to approval of a SIP revision, this would be a serious concern that should be addressed by the legislature, and this concern would exist in the period after designation regardless of how long it would take EPA to approve a nonattainment NSR program into the SIP. However, the comment did not provide any information to cause us to think that WDEQ lacks such authority. Even if it did, section 110(l) does not have an exception that allows EPA to approve a SIP revision that interferes with applicable requirements of the Act solely on the grounds that the State has been granted insufficient authority by its legislature to act in the interim prior to SIP approval.
Finally, the comment did not identify any owners or operators that have been unable to construct a new major source or major modification in the UGRB nonattainment area due to WDEQ's alleged lack of authority to issue permits. Nor did any owners or operators comment on our proposed disapproval. We also note that in order to meet nonattainment NSR requirements in the Sheridan coarse particulate matter (PM
The commenter references: Approval and Promulgation of Implementation Plans; Idaho, 79 FR 11711 (March 3, 2014) (approving portions of Idaho's plan that incorporated 40 CFR 51.165 by reference, without excluding any of the language referring to “the plan”); Approval and Promulgation of Implementation Plans; Iowa, 79 FR 27763 (May 15, 2014) (approving portions of Iowa's SIP revisions that incorporate language from 40 CFR 51.165, including the phrase “plan shall provide” three times and the phrase “the plan shall require” five times); Approval and Promulgation of Implementation Plans; Alaska Nonattainment New Source Review, 79 FR 65366 (November 4, 2014) (proposing to approve Alaska's SIP revisions that incorporate portions of 40 CFR 51.165 by reference, including the phrase “plan shall provide that” two times and the phrase “all plans shall use” one time). The commenter states that the Region 7 Administrator approved Iowa's plan as a direct final rule because “the Agency views [it] as a noncontroversial revision amendment.
The commenter states EPA may not declare that its own regulations, when incorporated by states in Region 7 and 10, are approvable for use in a SIP, but, when incorporated by a state in Region 8, are ambiguous, and therefore, do not contain enforceable emission limitations. The commenter concludes that EPA should approve Wyoming's submittal in accordance with these previous actions.
Second, EPA notes that we take numerous actions every year on SIP submittals, each of which by itself can be voluminous and contain many technical and legal issues. On occasion, it is possible that EPA may have approved portions of SIP submittals that do not meet all the requirements of the Act because EPA did not notice that a particular issue was implicated by the SIP submittal.
Generally speaking, EPA's requirements for SIPs with respect to construction of new and modified sources, including the Part D nonattainment NSR permit program, are contained in 40 CFR part 51, subpart I, and specifically, in 40 CFR 51.160 through 51.166. The requirements for SIPs for nonattainment areas are found in 51.165, but this section does not stand alone and is part of a series of sections that together, comprise the requirements for approvable SIP provisions (
In the case of Wyoming's submittal, the submittal fails to integrate the incorporation by reference of 51.165 into the State's permit program. Under Wyoming's SIP, the general construction permit program (
First, WAQSR, Chapter 6, Section 2(c)(v) provides that approval to construct cannot be granted until the permit applicant demonstrates that the facility will employ best available control technology (BACT). This conflicts with the requirement for nonattainment NSR that the facility be subject to the lowest achievable emission rate (LAER), which is determined by a different and generally speaking more stringent standard than BACT. Section 2 does not contain any provision stating that LAER instead of BACT should apply in the UGRB as to ozone precursor emissions. Thus, the submittal's incorporation by reference of 51.165 without corresponding updates to Section 2 fails to impose an enforceable obligation to meet the LAER requirement.
Second, in the case of the Sheridan PM
Third, Chapter 6, Section 2(k) sets forth certain categories of sources that are entirely exempt from the obligation to get approval for construction. However, Section 2(k) correctly recognizes that the PSD program does not allow for source category-based exemptions and therefore states that, notwithstanding these exemptions: “any facility which is a major emitting facility pursuant to the definition in Chapter 6, Section 4 [
The nonattainment NSR programs cited by the commenter do not contain the same approvability issues in Wyoming's May 10, 2011 SIP submittal discussed above. In 79 FR 65366 (November 4, 2014), EPA Region 10 proposed to approve the Alaska Part D nonattainment NSR rules based on a finding that the Alaska nonattainment NSR rules in 18 AAC 50, Article 3, Section 311 “Nonattainment area major stationary source permits” and 18 AAC 50.040(i) (incorporating by reference text from 40 CFR 51.165) met the requirements of the CAA and EPA's regulations for SIP nonattainment NSR rules. 79 FR 65366. EPA Region 10 noted that 18 AAC 50.311 had previously been approved into the Alaska SIP on August 14, 2007 (72 FR45378) and had not been revised since that time. EPA further explained that the primary changes proposed for approval in the SIP revision were updating the effective dates of the federal regulations previously adopted by reference in the Alaska SIP for purposes of Alaska's Part D nonattainment NSR program.
Unlike the Wyoming rule, which simply incorporates by reference the planning requirements of 40 CFR 51.165 and does not link the federal permitting requirements directly to Wyoming's existing state permitting rules, Alaska has adopted a complete state permitting rule that includes provisions that are specifically applicable to sources locating in nonattainment areas, including state provisions specifying the permissible location of offsets (see 18 AAC 50.311).
Because Alaska's reliance on 40 CFR 51.165 as part of its Part D nonattainment NSR program is part of an overall construction permitting program that imposes additional requirements on new and modified major sources located in nonattainment areas, and because Alaska's incorporation by reference of text from 40 CFR 51.165 is clear with respect to the intent of Alaska to adopt the permitting requirements as Alaska law applicable to sources locating in nonattainment areas, the Alaska program does not contain the issues identified above for Wyoming's incorporation by reference of 40 CFR 51.165.
Idaho's SIP approved Part D nonattainment NSR rules currently incorporate by reference 40 CFR 51.165 (as well as all of 40 CFR part 51, subpart I) into IDAPA 58.01.01.107.03.
Idaho has adopted a complete state permitting rule that includes provisions that are specifically applicable to sources locating in nonattainment areas, including state provisions specifying the permissible location of offsets (see IDAPA 58.01.01.200 through 228 and specifically 204 (PERMIT REQUIREMENTS FOR NEW MAJOR FACILITIES OR MAJOR MODIFICATIONS IN NONATTAINMENT AREAS). These provisions make clear that no source may commence construction of a new major facility or a major modification in a nonattainment area without obtaining a construction permit from the Idaho Department of Environmental Quality. IDAPA 58.01.01.204 also points to IDAPA 58.01.01.202 for application requirements and to IDAPA 58.01.01.209 for administrative processing requirements. In addition, IDAPA 58.01.01.204 clearly states that “The intent of Section 204 is to incorporate the federal nonattainment NSR rule requirements.” IDAPA 58.01.01.204 then goes on in subsection .01 to specify exactly which provisions from 40 CFR 51.165 are incorporated by reference for the purposes of Section 204. The effect of the statement of intent and the identification of specific provisions makes clear that these provisions of 40 CFR 51.165 are
Because Idaho's reliance on 40 CFR 51.165 as part of its Part D nonattainment NSR program is part of an overall construction permitting program that imposes additional requirements on new and modified major sources located in nonattainment areas, and because Idaho's incorporation by reference of specific provisions from 40 CFR 51.165 at IDAPA 58.01.01.204 is clear with respect to the intent of Idaho to adopt the permitting requirements as state law applicable to sources locating in nonattainment areas, the Idaho program does not contain the issues identified above for Wyoming's incorporation by reference of 40 CFR 51.165.
Iowa's SIP approved Part D nonattainment NSR rules were previously adopted by rule into Iowa Administrative Code (IAC) 567–22.5(455B). In an effort to streamline administrative rules and make them more user-friendly, Iowa consolidated the nonattainment NSR provisions into IAC 567.31 (Chapter 31, Nonattainment Areas) in its submittal acted on by EPA in 79 FR 27763 (May 15, 2014). In that submittal, the provisions of the previous approved rule were retained by the Iowa Department of Natural Resources, and were simply relocated to Chapter 31. The relocated rules for the most part mirror language in 40 CFR 51.165, with some modifications by the State. In fact, the public notice for Iowa's rulemaking states: “The federal regulations include many instructions to the states that could be confusing for businesses if the federal regulations were adopted by directly referencing the federal regulations.”
Iowa has adopted a complete state permitting rule that includes provisions that are specifically applicable to sources locating in nonattainment areas. Specifically, IAC 567–22.5(455B) (as revised in 79 FR 27763) and 567–31.1(455B) clearly state that no source may commence construction of a new major facility or a major modification in a nonattainment area without obtaining a construction permit from the Iowa Department of Natural Resources. IAC 567–22.1(1)(455B) (Permits Required for New or Existing Stationary Sources) also requires compliance with 567–22.5(455B) and IAC 567–31.3(455B) for permits prior to construction in nonattainment areas, and IAC 567–20.1 (Scope of Title—Definitions—Forms—Rules of Practice) is linked to requirements for areas designated as nonattainment.
Because Iowa's language mirroring that in 40 CFR 51.165 is part of an overall construction permitting program that imposes additional requirements on new and modified major sources located in nonattainment areas, the Iowa program does not contain the issues identified above for Wyoming's incorporation by reference of 40 CFR 51.165.
EPA has reviewed the SIPs cited by the commenter. While some of them may have instances of language that are problematic, none of them appear to have the same approvability flaws that we have identified with Wyoming's submittal.
We also disagree that the distinction between the minimum plan requirements for a permitting program and the permitting program itself is “illogical.” The actual program that a state adopts may meet the minimum plan requirements in any number of ways. Wyoming should be familiar with this distinction: As discussed above, the State chose to impose a construction ban in the Sheridan PM
The commenter inaccurately describes phrases such as “the plan shall provide” or “the plan shall require” as “isolated.” In fact, virtually every source obligation in 51.165(b) is prefaced by such a phrase. These are not “isolated” instances; they are ubiquitous.
We also disagree that it is “strained” to be concerned with the enforceability of the language that was incorporated. Faced with a lawsuit for violation of nonattainment NSR requirements, an owner or operator would naturally defend themselves by pointing out that the language literally does not impose requirements on owners and operators; instead it imposes requirements on state plans. While perhaps that defense would not always be successful, we do not think that Congress intended “enforceable” in section 110(a)(2)(A) to mean “potentially enforceable depending on whether a court will agree with the plaintiff's theory that the provision should not be read to mean what it literally says.” In other words, SIP provisions should not unnecessarily create defenses that make enforceability a matter of chance. Furthermore, we note that violations of nonattainment NSR program requirements can expose owners and operators to civil and criminal penalties. In such cases, courts have applied higher standards and
Finally, we are not “substituting our judgment for that of the state.” The State has not provided any binding interpretation of the provisions that would render them enforceable. If that were possible to do and the State had done so, this interpretation could have been incorporated into the plan and potentially resolved at least some of the issues. In response to the comment regarding our limited review authority, we reiterate: “The EPA may not approve any plan revision `if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress . . . or any other applicable requirement of [the Clean Air Act].' ”
We also disagree with the comment's characterization of EPA's action. First, the comment inaccurately characterizes EPA as “threatening” highway sanctions. As explained above, section 179(a) of the Act requires that the sanctions clock start after EPA's disapproval of a required element of a nonattainment plan. As a simple matter of proper notice to the public, EPA had the responsibility in our proposal to inform the public of this potential consequence of our proposed disapproval. There was no “threat” involved in stating the basic nondiscretionary operation of the CAA. The comment also without any basis characterizes EPA's action as a “departure from EPA's more measured response throughout the country when disagreements have arisen in the past.” The comment did not identify any actions where EPA disapproved a required nonattainment plan element and failed to start the sanctions clock, and in any case the Act requires that the clock be started.
In general, EPA would prefer to work with states to develop approvable submittals instead of disapproving flawed submittals and (in the case of nonattainment plans) triggering clocks for sanctions and FIP obligations. In this case, we were subject to a court-ordered deadline to finalize action on the submittal. We are still happy to work with the State to develop an approvable submittal, and we note that, under the Order of Sanctions Rule, in certain circumstances EPA can stay sanctions if the State has done so even before EPA takes final action on the approvable submittal. See 40 CFR 52.31(d).
We have fully considered the comments we received, and have concluded that no changes from our proposed rule are warranted. As discussed in our proposal and this notice, our action is based on an evaluation of Wyoming's rules against the requirements of CAA sections 110(a)(2)(C), 110(a)(2)(A), 110(i), 110(l), 172(c)(5), 172(c)(7), 173, regulations at 40 CFR 51.165, and other requirements discussed in section III of this action.
As described in our proposed rulemaking, and in Section II of this notice, EPA is approving the SIP revisions submitted by Wyoming on February 13, 2013 and February 10, 2014.
As described in our proposed rulemaking, and in Section III of this notice, EPA is disapproving the portion of the SIP revisions submitted by Wyoming on May 10, 2011 that adds Chapter 6, Section 13 to the Wyoming SIP.
We are sensitive to the concerns expressed in the State's comments. We also understand the State's goals in promulgating Chapter 6, Section 13, to have a SIP-approved permit program for sources located in nonattainment areas. We intend to work with the State to develop revised rules that are consistent with the State goals and consistent with the CAA and implementing regulations.
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 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office
• 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 in 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);
• 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; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 21, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
(1) * * *
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving a request submitted by the Illinois Environmental Protection Agency (Illinois EPA) on June 10, 2014, to revise the Illinois State Implementation Plan (SIP). The submission amends the Illinois Administrative Code (IAC) by updating the definition of “volatile organic material (VOM) or volatile organic compound (VOC)” to add five compounds to the list of exempted compounds. These revisions are based on EPA rulemakings in 2013 which added these compounds to the list of chemical compounds that are excluded from the Federal definition of VOC because, in their intended uses, they make negligible contributions to tropospheric ozone formation.
This direct final rule will be effective April 21, 2015, unless EPA receives adverse comments by March 23, 2015. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2014–0504, by one of the following methods:
1.
2.
3.
4.
5.
Douglas Aburano, Section Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353–6960,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:
The Illinois EPA submitted a revision to the Illinois SIP to EPA for approval on June 10, 2014. The SIP revision updates the definition of VOM or VOC at 35 IAC Part 211, Subpart B, Section 211.7150(a).
The Illinois Pollution Control Board held a public hearing on the proposed SIP revision on October 31, 2013. The Board received no comments.
EPA is approving an Illinois SIP revision that updates the definition of VOM or VOC at 35 IAC Part 211, Subpart B, Section 211.7150(a) to add (difluoromethoxy) (difluoro)methane (CHF
In 2005, EPA received a petition asking EPA to exempt HCF
In 2011, EPA received a petition asking EPA to exempt
EPA is approving a revision to the Illinois SIP which is consistent with EPA's 2013 actions revising the definition of VOC. The Illinois SIP revision adds (difluoromethoxy) (difluoro)methane (CHF
We are publishing this action without prior proposal because we view this as a noncontroversial amendment and anticipate no adverse comments. However, in the proposed rules section of this
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Clean Air Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• 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);
• 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; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
This rule 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 as specified by Executive Order 13175, nor will it impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 21, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(c) * * *
(202) On June 10, 2014, Illinois submitted revised regulations that are consistent with 40 CFR 51.100(s)(1). The compounds (difluoromethoxy) (difluoro)methane (CHF
(i)
Illinois Administrative Code Title 35: Environmental Protection; Subtitle B: Air Pollution; Chapter I: Pollution Control Board; Subchapter c: Emission Standards and Limitations for Stationary Sources; Part 211: Definitions and General Provisions; Subpart B: Definitions; Section 211.7150: Volatile Organic Material (VOM) or Volatile Organic Compound (VOC), effective November 27, 2013.
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is approving revisions to the Texas State Implementation Plan (SIP) submitted to meet Emissions Inventory (EI) requirements of the Clean Air Act (CAA) for the Dallas-Fort Worth (DFW) and the Houston-Galveston-Brazoria (HGB) nonattainment areas. EPA is approving the SIP revisions because they satisfy the CAA EI requirements for the DFW and HGB nonattainment areas under the 2008 eight-hour ozone National Ambient Air Quality Standards (NAAQS). EPA is approving the revisions pursuant to section 110 and part D of the CAA and EPA's regulations.
This direct final rule will be effective April 21, 2015 without further notice, unless EPA receives adverse comment by March 23, 2015. If EPA receives adverse comment, we will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket No. EPA–R06–OAR–2014–0554, by one of the following methods:
•
•
•
Ms. Nevine Salem, (214) 665–7222,
Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.
On March 12, 2008 EPA revised the eight-hour ozone NAAQS from 0.08 parts per million (ppm) to 0.075 ppm. (73 FR 16436, March 27, 2008). On July 12, 2012 EPA designated nonattainment areas for the 2008 ozone NAAQS (2008 ozone nonattainment areas) (77 FR 30088, May 21, 2012). The DFW and HGB areas were designated as nonattainment areas for the 2008 ozone NAAQS.
CAA sections 172(c)(3) and 182(a)(1) require states to develop and submit as a SIP revision an emissions inventory for all areas designated as nonattainment for the ozone NAAQS. 42 U.S.C. 172(c) and 182(a). An emissions inventory is an estimation of actual emissions of air pollutants in an area. Ground-level ozone, O
Texas adopted a SIP revision addressing the emissions inventory requirements for the DFW and HGB areas on July 2, 2014 and submitted it to EPA on July 16, 2014. Tables 1 and 2 are the DFW and HGB emissions inventories in the SIP revision.
The primary CAA requirements pertaining to the SIP revision submitted by Texas are found in CAA sections 110(l), 172(c)(3) and 182(a)(1). 42 U.S.C. 110(l), 172(c)(3), and 182(a). CAA section 110(l) requires that a SIP revision submitted to EPA be adopted after reasonable notice and public hearing. Section 110(l) also requires that EPA not approve a SIP revision if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress, or any other applicable requirement of the CAA. CAA sections 172(c)(3) and 182(a) requires a SIP revision that contains a comprehensive, accurate, current inventory of actual emissions from all sources.
EPA has reviewed the revision for the consistency with the requirements of EPA regulations. A summary of EPA's analysis is provided below. For a full discussion of our evaluation, please see our Technical Support Document (TSD).
CAA sections 172 (c)(3) and 182(a)(1) require a current inventory of actual emissions from all sources of relevant pollutants in the nonattainment areas. EPA Air Emissions Reporting regulations call for states to provide an emissions inventory from all sources every 3 years and required a complete inventory for 2011 (40 CFR 51.30). Additionally, in proposed rulemaking for the 2008 ozone standard we proposed that the states use 2011 as the base year for EI for the reasonable further progress emissions reduction SIP requirement (June 6, 2013, 78 FR 34178,
We are approving a Texas SIP revision submitted to address the emissions inventory requirements for the DFW and HGB 2008 ozone nonattainment areas. The inventories we are approving are listed in Tables 1 and 2 above.
EPA is publishing this rule without prior proposal because we view this as a non-controversial amendment and anticipate no adverse comments. However, in the proposed rules section of this
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (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);
• 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 CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
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 as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by April 21, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
The addition reads as follows:
(e) * * *
Environmental Protection Agency.
Final rule.
The Environmental Protection Agency (EPA) is taking final action to approve the State of Missouri's request to redesignate the Missouri portion of the St. Louis MO–IL nonattainment area, the “St. Louis area” or “area” to attainment for the 1997 8-hour National Ambient Air Quality Standards (NAAQS or Standard) for ozone (O
EPA has established a docket for this action under Docket ID No. EPA–R07–OAR–2014–0900. All documents in the docket are listed on the
Ms. Lachala Kemp, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, KS 66219 at (913) 551–7214 or by email at
Throughout this document whenever “we,” “us,” or “our” is used, we refer to EPA. This section provides additional information by addressing the following:
On July 18, 1997, EPA promulgated a revised 8-hour O
On November 3, 2011, Missouri requested redesignation of the Missouri portion of the St. Louis area to attainment of the 1997 8-hour O
On June 9, 2011 (76 FR 33647), EPA issued a final rulemaking determining that the entire St. Louis MO–IL area attained the 1997 8-hour O
On December 31, 2014(79 FR 78755), EPA published a notice of proposed rulemaking (NPR) proposing to approve Missouri's request to redesignate the Missouri portion of the St. Louis area to attainment of the 1997 8-hour O
The primary background for this action is contained in EPA's December 31, 2014, proposal to approve Missouri's redesignation request, and in EPA's June 9, 2011, final rulemaking determining that the area has attained the 1997 8-hour O
On November 3, 2011, EPA received a SIP revision from the State of Missouri requesting redesignation of the Missouri portion of the St. Louis MO–IL area to attainment for the 1997 8-hour O
EPA is approving a request from the State of Missouri to redesignate the Missouri portion of the St. Louis, MO–IL area to attainment of the 1997 8-hour O
In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for this action to become effective immediately upon publication. This is because a delayed effective date is unnecessary due to the nature of a redesignation to attainment, which relieves the area from certain CAA requirements that would otherwise apply to it. The immediate effective date for this action is authorized under both 5 U.S.C. 553(d)(1), which provides that rulemaking actions may become effective less than 30 days after publication if the rule “grants or recognizes an exemption or relieves a restriction,” and section 553(d)(3), which allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” The purpose of the 30-day waiting period prescribed in section 553(d) is to give affected parties a reasonable time to adjust their behavior and prepare before the final rule takes effect. This rule, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, this rule relieves the state of various requirements for this nonattainment area. For these reasons, EPA finds good cause under 5 U.S.C. 553(d)(3) for this action to become effective on the date of publication of this action.
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (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);
• 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 CAA; and
• does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
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).
The Congressional Review Act, 5 U.S.C. 801
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.
Environmental protection, Air pollution control.
42 U.S.C. 7401
For the reasons stated in the preamble, the Environmental Protection Agency amends 40 CFR parts 52 and 81 as set forth below:
42 U.S.C. 7401
(c) On November 3, 2011 and April 29, 2014, Missouri submitted requests to redesignate the Missouri portion of the St. Louis MO–IL area to attainment of the 1997 8-hour ozone standard. The Missouri portion of the St. Louis MO–IL area includes Jefferson, Franklin, St. Charles, and St. Louis Counties along with the City of St. Louis. As part of the redesignation request, the State submitted a plan for maintaining the 1997 8-hour ozone standard through 2025 in the area as required by Section 175A of the Clean Air Act.
42 U.S.C. 7401,
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of dimethenamid in or on cottonseed subgroup 20C and cotton, gin byproducts. BASF Corporation requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective February 20, 2015. Objections and requests for hearings must be received on or before April 21, 2015, 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–2013–0670, is available at
Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; 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:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Publishing Office's e-CFR site at
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–2013–0670 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 April 21, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
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–2013–0670, 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
Based upon review of the data supporting the petition, EPA has determined that a separate tolerance in cotton, seed, and refined oil is not needed. The reason for these changes are explained in Unit IV.C.
Section 408(b)(2)(A)(i) of FFDCA 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 dimethenamid including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with dimethenamid 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 existing toxicological database is comprised of studies conducted with both dimethenamid, which is a racemic mixture of S- and R-isomers (50:50, S:R), and dimethenamid-P, which is mixture of S- and R-isomers enriched in the S-isomer (90:10, S:R). Both sets of data for dimethenamid and dimethenamid-P show similar toxicity and together are adequate for risk assessment. Because of the similarity of the two mixtures, EPA relies on data for both to assess the hazard of each mixture.
The primary target organ is the liver. The toxicity in 90-day feeding studies in rats showed decreased body weights, increased cholesterol and changes in liver weights along with histopathology showing microscopic effects (centrilobular hypertrophy, periportal eosinophilic inclusions and necrosis) in the liver. Chronic studies in the rat, mouse, and dog showed decreases in body weight and food efficiency as accompanying effects over time. At higher dose levels, liver pathology (hepatic lesions, bile duct hyperplasia, and tumors), stomach hyperplasia, and some indications of kidney effects were noted. Two 21-day dermal toxicity studies in rabbits were conducted and in one of those studies minor skin irritation was observed at all doses tested and a decrease in body weight (bw) gain was also seen at the lowest effect level.
The acute neurotoxicity study resulted in effects such as partially closed eyelids, lacrimation, and slight salivation at the highest dose tested of (600 milligrams/kilograms/body weight (mg/kg/bw)). There were no treatment-related or toxicologically significant findings during the gross examination of rats or in the microscopic examination of neurological tissues. In the subchronic neurotoxicity study, there were no clinical signs seen and no adverse effects seen up to 323/390 mg/kg/bw day. Systemic effects seen were renal pelvic dilation in males (considered incidental) and a trend of higher liver weights in females was found at the lowest dose tested and
Developmental toxicity studies show increased post-implantation loss and minor skeletal variations in the rat, and late resorptions and minor skeletal variations in the rabbit at the highest dose tested (lowest observed adverse effect level: LOAEL, 425 mg/kg/day). In the rabbit, the developmental effects occurred at the same dose as maternal toxicity (LOAEL, 150 mg/kg/day), whereas in the rat, the developmental toxicity occurred at much higher doses than in the dams (LOAEL, 215 mg/kg/day). The chosen no observed adverse effect level (NOAEL) of 75 mg/kg/day is considered protective for effects seen in both studies. The reproduction study resulted in decreases in body weight in both pups and parental animals at the same dose levels. The only other effects noted at the LOAEL of 150 mg/kg/day were increases in liver weights in both male and female parental animals.
A review of the immunotoxicity study resulted in no immunotoxicity effects at the limit dose of 1,167 milligrams/kilograms (mg/kg), although increased absolute and relative liver weights were seen at this dose level. Dimethenamid-P is classified as group “C” possible human carcinogen, based on weak evidence for carcinogenicity.
The agency concluded that quantification of cancer risk using a non-linear approach would adequately account for all chronic toxicity (including carcinogenicity) that could result from exposure to dimethenamid based on the following weight of evidence considerations:
1. No statistically significant increase in liver tumors (only an increasing trend for liver tumors in one sex (male) and one species (rat)).
2. No evidence of carcinogenicity in male or female mice.
3. Equivocal evidence for mutagenicity.
4. The POD of 5 mg/kg/day used for human health risk assessment is 15-fold lower than the dose (75 mg/kg/day) that caused the liver tumors and thus considered protective for cancer.
Specific information on the studies received and the nature of the adverse effects caused as well as the NOAEL and the LOAEL from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological POD and levels of concern (LOC) 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 the NOAEL and the LOAEL are identified. 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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Based on the Surface Water Concentration Calculator (SWCC) and the Pesticide Root Zone Model for Ground Water (PRZM–GW), estimated drinking water concentrations (EDWCs) were calculated for the parent compound plus its ethanesulfonic acid and oxanilic acid degradates, which are residues of concern in drinking water as follows: For acute exposures, EDWCs are estimated to be 73 parts per billion (ppb) for surface water and 153 ppb for ground water; for chronic exposures, EDWCs for non-cancer assessments are estimated to be 27 ppb for surface water and 140 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model.
Because there was little difference between the maximum EDWCs for acute and chronic exposures, the maximum water concentration value of 153 ppb was used to assess the contribution to drinking water for both the acute and chronic dietary risk assessments.
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• Mixing/loading/applying liquid formulations to lawns/turf with a hose-end and/or backpack sprayer, and a manually-pressurized hand wand.
• Mixing/loading/applying liquid formulations to garden/trees with a sprinkler can and a hose-end sprayer.
• Mixing/loading/applying granular formulations to lawns/turf with a push-type rotary sprayer and a belly grinder.
• Mixing/loading/applying granular formulations to garden/trees with a shaker can/cup, a spoon or by hand dispersal.
The scenarios, routes of exposure, and lifestages of potential post-application exposure include:
• Physical activities on turf: Adults (dermal) and children 1 to <2 years old (dermal and incidental oral).
• Mowing: Adults (dermal) and children 11 to <16 years old (dermal).
• Golfing: Adults (dermal), children 11 to <16 years old (dermal), and children 6 to <11 years old (dermal).
• Contact with Treated Gardens and Trees: Adults (dermal) and children 6 to <11 years old (dermal). The values used for aggregate assessment are based on the worst-case residential exposure estimates via the inhalation (adult male) and oral (child 1 < 2 years old) routes.
Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
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EPA has not found that dimethenamid-P and dimethenamid share a common mechanism of toxicity with any other substances, or that they appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that dimethenamid-P and dimethenamid do not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's Web site at
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i. The toxicity database for dimethenamid and dimethenamid-P is complete.
ii. There is no indication that dimethenamid or dimethenamid-P is a neurotoxic chemical and there is no need for a developmental neurotoxicity study or additional UFs to account for neurotoxicity.
iii. There is no evidence that dimethenamid or dimethenamid-P results in increased susceptibility
iv. There are no residual uncertainties identified in the exposure databases. The dietary food exposure assessments were performed based on 100% CT and tolerance-level residues which results in very high-end estimates of dietary exposure. The dietary drinking water assessment, which included parent plus its ethanesulfonic acid and oxanilic acid degradates, utilizes values generated by model and associated modeling parameters which are designed to provide health protective, high-end estimates of water concentrations. These assessments will not underestimate the exposure and risks posed by dimethenamid-P and/or dimethenamid residues of concern.
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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Dermal and inhalation exposures to handlers were not aggregated because the toxicity endpoints for these exposure routes are not based on common toxicity effects in/of the liver. Dermal effects (bw gain) were considered to be non-specific. EPA aggregated the worst-case residential exposure estimates via the inhalation (adult male) and oral (child 1 < 2 years old) routes.
Using the exposure assumptions described in this unit for short-term exposures, EPA has concluded the combined short-term food, water, and residential exposures result in an aggregate MOEs of 2,200 for adults and 1,100 for children 1–2 years old. Because EPA's LOC for dimethenamid-P is a MOE of 100 or below, these MOEs are not of concern.
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An adequate enforcement method is available for determining residues of dimethenamid in plant commodities. The Gas Chromatography/Nitrogen-Phosphorus Detector (GC/NPD) method (AM–0884–0193–1) has been validated by the Agency and submitted for publication in the Food and Drug Administration (FDA) Pesticide Analytical Manual (PAM), Volume II. The limit of quantitation (LOQ; determined as the lowest level of method validation, LLMV) is 0.01 ppm. This method is not enantiomer specific.
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 dimethenamid or dimethenamid-P in/on members of cottonseed subgroup 20C and cotton, gin byproducts.
A separate tolerance in cotton, seed, refined oil is not needed since the exaggerated rate processing study demonstrates that the petitioned-for tolerance in/on cottonseed subgroup 20C (0.01 ppm) will be adequate to cover potential residues of dimethenamid in refined oil.
Therefore, tolerances are established for residues of the herbicide dimethenamid, 1(
This final rule 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 final rule has been exempted from review under Executive Order 12866, this final rule 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 final rule does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This final rule 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
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 of 1995 (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, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a) * * *
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes an exemption from the requirement of a tolerance for residues of the fungicide
This regulation is effective February 20, 2015. Objections and requests for hearings must be received on or before April 21, 2015, 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–2013–0574 is available at
Robert McNally, Biopesticides and Pollution Prevention Division (7511P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001; main telephone number: (703) 305–7090; 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:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of 40 CFR part 180 through the Government Publishing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a(g), 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–2013–0574 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 April 21, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
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
•
•
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In the
In the
Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(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. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which require EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance or tolerance exemption, 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. . . .” Additionally, FFDCA section 408(b)(2)(D) requires that the Agency consider “available information concerning the cumulative effects of (a particular pesticide's) . . . residues and other substances that have a common mechanism of toxicity.”
Consistent with 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 to
Based upon that evaluation, EPA concludes that there is a reasonable certainty that no harm will result to the U.S. population, including infants and children, from aggregate exposure to residues of
An analytical method is not required for enforcement purposes for the reasons contained in the document entitled, “Federal Food, Drug, and Cosmetic Act (FFDCA) Considerations for
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), which 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.
The Codex has not established a MRL for
Two general comments were filed opposing the establishment of any tolerance or exemption. The Agency recognizes that some individuals believe that no residue of pesticides should be allowed on foods; however, under the existing legal framework provided by section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA), EPA is authorized to establish pesticide tolerances or exemptions where persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by the statute. Based on the available information, EPA has determined that the use of
This action establishes a tolerance exemption 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
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance exemption in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
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, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
An exemption from the requirement of a tolerance is established for residues of
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Final rule; extension of compliance date.
PHMSA is extending for modes of transportation other than air the mandatory compliance date of a final rule published on August 6, 2014, under Docket No. HM–224F from February 6, 2015, until August 7, 2015. This extension is made in response to formal comments received from multiple stakeholders outlining challenges faced by the regulated community in fully implementing the provisions of the final rule by the February 6, 2015 mandatory compliance date.
The compliance date for the final rule published August 6, 2014, at 79 FR 46012, is extended until August 7, 2015.
Vincent Babich or Steven Webb Standards and Rulemaking Division, Pipeline and Hazardous Materials Safety Administration, telephone (202) 366–8553.
On August 6, 2014 [79 FR 46012], PHMSA in consultation with the Federal Aviation Administration (FAA) published a final rule under Docket No. PHMSA–2009–0095 (HM–224F) modifying requirements governing the transportation of lithium cells and batteries. The final rule revised hazard communication and packaging provisions for lithium batteries to harmonize the Hazardous Materials Regulations (HMR; CFR parts 171–180) with applicable provisions of the United Nations (UN) Model Regulations, the International Civil Aviation Organization's Technical Instructions for the Safe Transport of Dangerous Goods by Air (ICAO Technical Instructions) and the International Maritime Dangerous Goods (IMDG) Code. In the August 6, 2014 final rule, PHMSA authorized a mandatory compliance date of February 6, 2015 (six months after publication in the
The Retail Industry Leaders Association, the Food Marketing Institute, the National Retail Federation, and the Rechargeable Battery Association submitted a joint request for an extension of six months to the current mandatory compliance date. These groups contend that the six month transitional period adopted in the final rule did not provide sufficient time to comply with the new requirements and has proven extremely challenging for the retail industry to implement in particular for surface transportation. The request notes that “generally, the new regulations require that domestic ground shipments of products with lithium batteries adhere to shipping standards previously only required for international air and sea transportation”. The groups further note that the detailed information necessary for compliance, such as the specific
PHMSA appreciates the additional information submitted and has reviewed the information in conjunction with the information considered during the rulemaking process. Based on this review, PHMSA believes the additional arguments and justification provided by the commenters have merit and that an extension of the mandatory compliance date for modes of transportation other than aircraft is warranted. PHMSA recognizes that the primary focus of the HM–224F final rulemaking as outlined in published notices preceding the final rule was to align the requirements of the HMR for air transportation of lithium batteries with those of the ICAO Technical Instructions. PHMSA believes that maintaining the February 6, 2015 compliance date for air transport is appropriate and important for aviation safety and is therefore maintaining the February 6, 2015 effective date for offering, acceptance, and transportation by aircraft. Therefore, in consultation with the FAA and consistent with the information set forth in the joint request, this extension does not apply to transportation by aircraft. In the event an air carrier becomes aware of a non-compliant shipment offered to it, the air carrier should report the incident to the FAA in addition to taking specific actions required by the regulations as to that shipment. For questions regarding reporting of such incidents, carriers may contact the nearest FAA Regional or Field Security Office by telephone or electronically.
In summary, in response to commenters' requests PHMSA is extending the mandatory compliance date for the final rule published under Docket No. HM–224F on August 6, 2014, until August 7, 2015 for all modes other than transportation by aircraft to allow additional time to implement the requirements of the rule. The mandatory compliance date of February 6, 2015 remains in effect with respect to offering, acceptance and transportation by aircraft.
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), are issuing this final rule to comply with court orders that reinstate the regulatory protections under the Endangered Species Act of 1973, as amended (ESA), for the gray wolf
This action is effective February 20, 2015. The September 23, 2014, court order reinstated the April 2, 2009, final rule designating the gray wolf in Wyoming as a nonessential experimental population immediately upon its filing. The court order regarding wolves in the western Great Lakes had legal effect immediately upon its filing on December 19, 2014. The Director has further determined, pursuant to 5 U.S.C. 553(d), that the Service has good cause to make this rule effective upon publication.
This final rule is available:
• Electronically at
• From U.S. Fish and Wildlife Service, Mountain-Prairie Region Office, Ecological Services Division, 134 Union Blvd., Lakewood, CO 80228; telephone 303–236–7400; or
• From U.S. Fish and Wildlife Service, Midwest Region Office, 5600 American Blvd. West, Suite 990, Bloomington, MN 55437; telephone 612–713–5360.
Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800–877–8339.
For information on wolves in Wyoming, contact Mike Jimenez, Northern Rocky Mountains Gray Wolf Recovery Coordinator, U.S. Fish and Wildlife Service, P.O. Box 8135, Missoula, MT 59807; by telephone 307–330–5631. For information on wolves in the western Great Lakes, contact Laura Ragan, Regional Listing Coordinator, U.S. Fish and Wildlife Service, 5600 American Blvd. West, Suite 990, Bloomington, MN 55437; by telephone 612–713–5350. Individuals who are hearing-impaired or speech-impaired may call the Federal Relay Service at 800–877–8337 for TTY assistance.
On September 10, 2012, we published a final rule to remove the gray wolf in Wyoming from the Federal List of Endangered and Threatened Wildlife (77 FR 55530; “2012 delisting rule”). Additional background information on the gray wolf in Wyoming and on this decision, including previous Federal actions, can be found in our 2012 delisting rule.
Lawsuits challenging our 2012 delisting rule were filed. On September 23, 2014, the U.S. District Court for the District of Columbia vacated and set aside our 2012 delisting rule (
The decision reinstates Federal protections that were in place prior to our 2012 delisting rule. Therefore, gray wolves in Wyoming are once again classified as an experimental population (59 FR 60252, November 22, 1994; 70 FR 1286, January 6, 2005; 73 FR 4720, January 28, 2008; 50 CFR 17.84(i) and (n)). Thus, take of wolves may be authorized only by one of these experimental population rules or by a permit obtained under section 10 of the ESA.
As a result of the court's decision, all of Wyoming except the Wind River Indian Reservation again operates under the 1994 nonessential experimental population rule (50 CFR 17.84(i)). The rule allows significant management flexibility, but does not allow the State to assume authority for wolf management. Thus, at present, the Service will continue to be the lead management agency for wolves throughout most of Wyoming. The Wind River Indian Reservation can again operate under the 2005 nonessential experimental population rule, as amended in 2008 (50 CFR 17.84(n)). Under the 2005 rule, States and Tribal entities can assume management authority over wolves if they obtain approved management plans from the Service and comply with all other applicable procedures. We notified all State, Federal, and Tribal partners of the court's September 23, 2014, decision and its impact shortly after the court issued its order. The Service and the State of Wyoming also took steps, such as press releases and agency Web site postings, to ensure the public was aware of the court's order.
On December 28, 2011, we published a final rule to remove the gray wolf in the western Great Lakes from the Federal List of Endangered and Threatened Wildlife (76 FR 81666; “2011 delisting rule”). Additional background information on the gray wolf in the western Great Lakes and on this decision, including previous Federal actions, can be found in our 2011 delisting rule.
A lawsuit challenging the 2011 delisting rule was filed on February 12, 2013. On December 19, 2014, the U.S. District Court for the District of Columbia vacated and set aside our 2011 delisting rule (
The decision reinstates Federal protections that were in place prior to our 2011 delisting rule. Therefore, wolves in all of Wisconsin and Michigan, the eastern half of North Dakota and South Dakota, the northern half of Iowa, the northern portions of Illinois and Indiana, and the northwestern portion of Ohio are once again classified as endangered, and wolves in Minnesota are once again classified as threatened. The decision also reinstates the formerly designated critical habitat at 50 CFR 17.95(a) for gray wolves in Minnesota and Michigan and the regulations promulgated under section 4(d) of the ESA at 50 CFR 17.40(d) for the gray wolf in Minnesota. Thus, take of wolves in those areas may be authorized only by the section 4(d) rule for wolves in Minnesota or by a permit obtained under section 10 of the ESA.
To comply with the September 23, 2014, court order, we must reinstate our:
• April 2, 2009, rule (74 FR 15123), and
• Section 10(j) rules (59 FR 60252, November 22, 1994; 70 FR 1286, January 6, 2005; 73 FR 4720, January 28, 2008; 50 CFR 17.84(i) and (n)).
To comply with the December 19, 2014, court order, we must reinstate our:
• March 9, 1978, rule (43 FR 9607),
• Critical habitat designation for gray wolves in Minnesota and Michigan, and
• Section 4(d) rule for gray wolves in Minnesota.
Therefore, the Director has determined, pursuant to 5 U.S.C. 553(b), that prior notice and opportunity for public comment are impractical and unnecessary.
Per the September 23, 2014 court order, any and all gray wolves in Wyoming are listed as a nonessential experimental population under section 10(j) of the ESA (50 CFR 17.84(i) and (n)). These regulations are the same as those in the regulations that were removed per our 2012 delisting rule (77 FR 55530). Although not required by the court, for consistency, we are placing the reinstated regulations at the specific paragraph designations they previously occupied in the Code of Federal Regulations prior to our issuance of the 2012 delisting rule. In order to accommodate this placement, we are moving regulations governing the Topeka shiner (
Per the December 19, 2014, court order, any and all gray wolves in all of Wisconsin and Michigan, the eastern half of North Dakota and South Dakota, the northern half of Iowa, the northern portions of Illinois and Indiana, and the northwestern portion of Ohio are listed as an endangered species under the ESA. Any and all wolves in Minnesota are listed as a threatened species under the ESA. The reinstated regulations at 50 CFR 17.95 designate critical habitat for gray wolves in Minnesota and Michigan, and the reinstated regulations at 50 CFR 17.40(d) govern the regulation of gray wolves in Minnesota. The provisions of these regulations are the same as those in the regulations that were removed per our 2011 delisting rule (76 FR 81666). Although not required by the court, for consistency, we are placing the reinstated regulations at the specific paragraph designations they previously occupied in the Code of Federal Regulations prior to our issuance of the 2011 delisting rule. In order to accommodate this placement, we are moving regulations promulgated under section 4(d) of the ESA for the straight-horned markhor (
Because of previous rulemaking actions pertaining to gray wolves, the result of this recent court action is that gray wolves in all of Wisconsin, Michigan, North Dakota, South Dakota, Iowa, Illinois, Indiana, and Ohio are hereby listed as endangered (50 CFR 17.11(h)). Wolves in Minnesota are listed as threatened (50 CFR 17.11(h)).
This rule does not affect the status of gray wolves in Montana, Idaho, the eastern third of Washington and Oregon, and north-central Utah. Wolves in these areas retain their delisted status and will continue to be managed by the States.
This rule does not affect the gray wolf's Appendix II status under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361–1407; 1531–1544; 4201–4245, unless otherwise noted.
(h) * * *
(d) Gray wolf (
(1)
(i) Zone 1—4,488 square miles. Beginning at the point of intersection of United States and Canadian boundaries in Section 22, Township 71 North, Range 22 West, in Rainy Lake, then proceeding along the west side of Sections 22, 27, and 34 in said Township and Sections 3, 10, 15, 22, 27 and 34 in Township 70 North, Range 22 West and Sections 3 and 10 in Township 69 North, Range 22 West; then east along the south boundaries of Sections 10, 11, and 12 in said Township; then south along the Koochiching and St. Louis counties line to Highway 53; thence southeasterly along State Highway 53 to the junction with County Route 765; thence easterly along County Route 765 to the junction with Kabetogama Lake in Ash River Bay; thence along the south boundary of Section 33 in Township 69 North, Range 19 West, to the junction with the Moose River; thence southeasterly along the Moose River to Moose Lake; thence along the western shore of Moose Lake to the river between Moose Lake and Long Lake; thence along the said river to Long Lake; thence along the east shore of Long Lake to the drainage on the southeast side of Long Lake in NE\1/4\, Section 18, Township 67 North, Range 18 West; thence along the said drainage southeasterly and subsequently northeasterly to Marion Lake, the drainage being in Sections 17 and 18, Township 67 North, Range 18 West; thence along the west shoreline of Marion Lake proceeding southeasterly to the Moose Creek; thence along Moose Creek to Flap Creek; thence southeasterly along Flap Creek to the Vermilion River; thence southerly along the Vermilion River to Vermilion Lake; thence along the Superior National Forest boundary in a southeasterly direction through Vermilion Lake passing these points: Oak Narrows, Muskrat Channel, South of Pine Island, to Hoodo Point and the junction with County Route 697; thence southeasterly on County Route 697 to the junction with State Highway 169; thence easterly along State Highway 169 to the junction with State Highway 1; thence easterly along State Highway 1 to the junction with the Erie Railroad tracks at Murphy City; thence easterly along the Erie Railroad tracks to the junction with Lake Superior at Taconite Harbor; thence northeasterly along the North Shore of Lake Superior to the Canadian Border; thence westerly along the Canadian Border to the point of beginning in Rainy Lake.
(ii) Zone 2—1,856 square miles. Beginning at the intersection of the Erie Mining Co. Railroad and State Highway 1 (Murphy City); thence southeasterly on State Highway 1 to the junction with County Road 4; thence southwesterly on County Road 4 to the State Snowmobile Trail (formerly the Alger-Smith Railroad); thence southwesterly to the intersection of the Old Railroad Grade and Reserve Mining Co. Railroad in Section 33 of Township 56 North, Range 9 West; thence northwesterly along the Railroad to Forest Road 107; thence westerly along Forest Road 107 to Forest Road 203; thence westerly along Forest Road 203 to the junction with County Route 2; thence in a northerly direction on County Route 2 to the junction with Forest Road 122; thence in a westerly direction along Forest Road 122 to the junction with the Duluth, Missable and Iron Range Railroad; thence in a southwesterly direction along the said railroad tracks to the junction with County Route 14; thence in a northwesterly direction along County Route 14 to the junction with County Route 55; thence in a westerly direction along County Route 55 to the junction with County Route 44; thence in a southerly direction along County Route 44 to the junction with County Route 266; thence in a southeasterly direction along County Route 266 and subsequently in a westerly direction to the junction with County Road 44; thence in a northerly direction on County Road 44 to the junction with Township Road 2815; thence westerly along Township Road 2815 to Alden Lake; thence northwesterly across Alden Lake to the inlet of the Cloquet River; thence northerly along the Cloquet River to the junction with Carrol Trail-State Forestry Road; thence west along the Carrol Trail to the junction with County Route 4 and County Route 49; thence west along County Route 49 to the junction with the Duluth, Winnipeg and Pacific Railroad; thence in a northerly direction along said Railroad to the
(iii) Zone 3—3,501 square miles. Beginning at the junction of State Highway 11 and State Highway 65; thence southeasterly along State Highway 65 to the junction with State Highway 1; thence westerly along State Highway 1 to the junction with State Highway 72; thence north along State Highway 72 to the junction with an un-numbered township road beginning in the northeast corner of Section 25, Township 155 North, Range 31 West; thence westerly along the said road for approximately seven (7) miles to the junction with SFR 95: Thence westerly along SFR 95 and continuing west through the southern boundary of Sections 36 through 31, Township 155 North, Range 33 West, through Sections 36 through 31, Township 155 North, Range 34 West, through Sections 36 through 31, Township 155 North, Range 35 West, through Sections 36 and 35, Township 155 North, Range 36 West to the junction with State Highway 89, thence northwesterly along State Highway 89 to the junction with County Route 44; thence northerly along County Route 44 to the junction with County Route 704; thence northerly along County 704 to the junction with SFR 49; thence northerly along SFR 49 to the junction with SFR 57; thence easterly along SFR 57 to the junction with SFR 63: Thence south along SFR 63 to the junction with SFR 70; thence easterly along SFR 70 to the junction with County Route 87; thence easterly along County Route 87 to the junction with County Route 1; thence south along County Route 1 to the junction with County Route 16; thence easterly along County Route 16 to the junction with State Highway 72; thence south on State Highway 72 to the junction with a gravel road (un-numbered County District Road) on the north side of Section 31, Township 158 North, Range 30 West; thence east on said District Road to the junction with SFR 62; thence easterly on SFR 62 to the junction with SFR 175; thence south on SFR 175 to the junction with County Route 101; thence easterly on County Route 101 to the junction with County Route 11; thence easterly on County Route 11 to the junction with State Highway 11; thence easterly on State Highway 11 to the junction with State Highway 65, the point of beginning.
(iv) Zone 4—20,883 square miles. Excluding Zones 1, 2 and 3, all that part of Minnesota north and east of a line beginning on State Trunk Highway 48 at the eastern boundary of the state; thence westerly along Highway 48 to Interstate Highway 35; thence northerly on I–35 to State Highway 23, thence west one-half mile on Highway 23 to State Trunk Highway 18; thence westerly along Highway 18 to State Trunk Highway 65, thence northerly on Highway 65 to State Trunk Highway 210; thence westerly along Highway 210 to State Trunk Highway 6; thence northerly on State Trunk Highway 6 to Emily; thence westerly along County State Aid Highway (CSAH) 1, Crow Wing County, to CSAH 2, Cass County; thence westerly along CSAH 2 to Pine River; thence northwesterly along State Trunk Highway 371 to Backus; thence westerly along State Trunk Highway 87 to U.S. Highway 71; thence northerly along U.S. 71 to State Trunk Highway 200; thence northwesterly along Highway 200, to County State Aid Highway (CSAH) 2, Clearwater County; thence northerly along CSAH 2 to Shevlin; thence along U.S. Highway 2 to Bagley; thence northerly along State Trunk Highway 92 to Gully; thence northerly along CSAH 2, Polk County, to CSAH 27, Pennington County; thence along CSAH 27 to State Trunk Highway 1; thence easterly on Highway 1 to CSAH 28, Pennington County; thence northerly along CSAH 28 to CSAH 54, Marshall County, thence northerly along CSAH 54 to Grygla; thence west and northerly along Highway 89 to Roseau; thence northerly along State Truck Highway 310 to the Canadian border.
(v) Zone 5—54,603 square miles. All that part of Minnesota south and west of the line described as the south and west border of Zone 4.
(vi) Map of regulatory zones follows:
(2)
(i)
(A) Any person may take a gray wolf in Minnesota in defense of his own life or the lives of others.
(B) Any employee or agent of the Service, any other Federal land management agency, or the Minnesota Department of Natural Resources, who is designated by his/her agency for such purposes, may, when acting in the course of his or her official duties, take a gray wolf in Minnesota without a permit if such action is necessary to:
(
(
(
(C) Designated employees or agents of the Service or the Minnesota Department of Natural Resources may take a gray wolf without a permit in Minnesota, in zones 2, 3, 4, and 5, as delineated in paragraph (d)(l) of this section, in response to depredations by a gray wolf on lawfully present domestic animals: Provided, that such taking must occur within one-half mile of the place where such depredation occurred and must be performed in a humane manner: And provided further, that any young of the year taken on or before August 1 of that year must be released.
(D) Any taking pursuant to paragraph (d)(2)(i)(A), (d)(2)(i)(B), or (d)(2)(i)(C) of this section must be reported in writing to the Twin Cities Ecological Service Field Office, 4101 American Boulevard East, Bloomington, Minnesota, 55425, or by facsimile (612) 725–3609 within 5 days. The specimen may only be retained, disposed of, or salvaged in accordance with directions from the Service.
(E) Any employee or agent of the Service or the Minnesota Department of Natural Resources, when operating under a Cooperative Agreement with the Service signed in accordance with section 6(c) of the Endangered Species Act of 1973, who is designated by the Service or the Minnesota Department of Natural Resources for such purposes, may, when acting in the course of his or her official duties, take a gray wolf in Minnesota to carry out scientific research or conservation programs.
(ii)
(iii)
(3)
(i) Gray wolf
(2) The Service finds that reintroduction of nonessential experimental gray wolves, as defined in paragraph (i)(7) of this section, will further the conservation of the species.
(3) No person may take this species in the wild in an experimental population area except as provided in paragraphs (i)(3), (7), and (8) of this section.
(i) Landowners on their private land and livestock producers (
(ii) Any livestock producers on their private land may take (including to kill or injure) a wolf in the act of killing, wounding, or biting livestock (cattle, sheep, horses, and mules or as defined in State and tribal wolf management plans as approved by the Service), provided that such incidents are reported within 24 hours to the Service project leader for wolf reintroduction or agency representative designated by the Service, and livestock freshly (less than 24 hours) wounded (torn flesh and bleeding) or killed by wolves must be evident. Service or other Service-authorized agencies will confirm if livestock were wounded or killed by wolves. The taking of any wolf without such evidence may be referred to the appropriate authorities for prosecution.
(iii) Any livestock producer or permittee with livestock grazing allotments on public land may receive a written permit, valid for up to 45 days, from the Service or other agencies designated by the Service, to take (including to kill or injure) a wolf that is in the act of killing, wounding, or biting livestock (cattle, sheep, horses, and mules or as defined in State and tribal wolf management plans as approved by the Service), provided that six or more breeding pairs of wolves have been documented in the experimental population area and the Service or other agencies authorized by the Service has confirmed that the livestock losses were caused by wolves and has completed agency efforts to resolve the problem. Such take must be reported within 24 hours to the Service project leader for wolf reintroduction or agency representative designated by the Service. There must be evidence of freshly wounded or killed livestock by wolves. Service or other Service-authorized agencies will investigate and determine if the livestock were wounded or killed by wolves. The taking of any wolf without such evidence may be referred to the appropriate authorities for prosecution.
(iv) Potentially affected States and tribes may capture and translocate wolves to other areas within an experimental population area as described in paragraph (i)(7) of this section, provided the level of wolf predation is negatively impacting localized ungulate populations at an unacceptable level. Such translocations cannot inhibit wolf population recovery. The States and tribes will define such unacceptable impacts, how they would be measured, and identify other possible mitigation in their State or tribal wolf management plans. These plans must be approved by the Service before such movement of wolves may be conducted.
(v) The Service, or agencies authorized by the Service, may promptly remove (place in captivity or kill) any wolf that the Service or agency authorized by the Service determines to present a threat to human life or safety.
(vi) Any person may harass or take (kill or injure) a wolf in self defense or in defense of others, provided that such take is reported within 24 hours to the Service reintroduction project leader or Service-designated agent. The taking of a wolf without an immediate and direct threat to human life may be referred to the appropriate authorities for prosecution.
(vii) The Service or agencies designated by the Service may take wolves that are determined to be “problem” wolves. Problem wolves are defined as wolves that in a calendar year attack livestock (cattle, sheep, horses, and mules or as defined by State and tribal wolf management plans approved by the Service) or wolves that twice in a calendar year attack domestic animals (all domestic animals other than livestock). Authorized take includes, but is not limited to, nonlethal measures such as: Aversive conditioning, nonlethal control, and/or translocating wolves. Such taking may be done when five or fewer breeding pairs are established in an experimental population area. If the take results in a wolf mortality, then evidence that the mortality was nondeliberate, accidental, nonnegligent, and unavoidable must be provided. When six or more breeding pairs are established in the experimental population area, lethal control of problem wolves or permanent placement in captivity will be authorized but only after other methods to resolve livestock depredations have been exhausted. Depredations occurring on Federal lands or other public lands identified in State or tribal wolf management plans and prior to six breeding pairs becoming established in an experimental population area may result in capture and release of the female wolf and her pups at or near the site of capture prior to October 1. All wolves on private land, including female wolves with pups, may be relocated or moved to other areas within the experimental population area if continued depredation occurs. Wolves attacking domestic animals other than livestock, including pets on private land, two or more times in a calendar year will be relocated. All chronic problem wolves (wolves that depredate on domestic animals after being moved once for previous domestic animal depredations) will be removed from the wild (killed or placed in captivity). The following three criteria will be used in determining the status of problem wolves within the nonessential experimental population area:
(A) There must be evidence of wounded livestock or partial remains of a livestock carcass that clearly shows that the injury or death was caused by wolves. Such evidence is essential since wolves may feed on carrion that they found and did not kill. There must be reason to believe that additional livestock losses would occur if no control action is taken.
(B) There must be no evidence of artificial or intentional feeding of wolves. Improperly disposed of livestock carcasses in the area of depredation will be considered attractants. Livestock carrion or carcasses on public land, not being used as bait under an agency-authorized control action, must be removed or otherwise disposed of so that it will not attract wolves.
(C) On public lands, animal husbandry practices previously identified in existing approved allotment plans and annual operating plans for allotments must have been followed.
(viii) Any person may take a gray wolf found in an area defined in paragraph (i)(7) of this section, provided that the take is incidental to an otherwise lawful activity, accidental, unavoidable, unintentional, not resulting from negligent conduct lacking reasonable due care, and due care was exercised to avoid taking a gray wolf. Such taking is to be reported within 24 hours to a Service or Service-designated authority. Take that does not conform with such provisions may be referred to the appropriate authorities for prosecution.
(ix) Service or other Federal, State, or tribal personnel may receive written authorization from the Service to take animals under special circumstances. Wolves may be live-captured and translocated to resolve demonstrated conflicts with ungulate populations or with other species listed under the Act, or when they are found outside of the designated experimental population area. Take procedures in such instances would involve live-capture and release to a remote area or placement in a captive facility, if the animal is clearly unfit to remain in the wild. Killing of wolves will be a last resort and is only authorized when live-capture attempts have failed or there is clear endangerment to human life.
(x) Any person with a valid permit issued by the Service under § 17.32 may take wolves in the wild in the experimental population area, pursuant to terms of the permit.
(xi) Any employee or agent of the Service or appropriate Federal, State, or tribal agency, who is designated in writing for such purposes by the Service, when acting in the course of official duties, may take a wolf from the wild within the experimental population area, if such action is for:
(A) Scientific purposes;
(B) To relocate wolves to avoid conflict with human activities;
(C) To relocate wolves within the experimental population areas to improve wolf survival and recovery prospects;
(D) To relocate wolves that have moved outside the experimental population area back into the experimental population area;
(E) To aid or euthanize sick, injured, or orphaned wolves;
(F) To salvage a dead specimen that may be used for scientific study; or
(G) To aid in law enforcement investigations involving wolves.
(xii) Any taking pursuant to this section must be reported within 24 hours to the appropriate Service or Service-designated agency, which will determine the disposition of any live or dead specimens.
(4) Human access to areas with facilities where wolves are confined may be restricted at the discretion of Federal, State, and tribal land management agencies. When five or fewer breeding pairs are in an experimental population area, land-use restrictions may also be employed on an as-needed basis, at the discretion of Federal land management and natural resources agencies to control intrusive human disturbance around active wolf den sites. Such temporary restrictions on human access, when five or fewer breeding pairs are established in an experimental population area, may be required between April 1 and June 30, within 1 mile of active wolf den or rendezvous sites and would apply only to public lands or other such lands designated in State and tribal wolf management plans. When six or more breeding pairs are established in an experimental population area, no land-use restrictions may be employed outside of national parks or national wildlife refuges, unless wolf populations fail to maintain positive growth rates toward population recovery levels for 2 consecutive years. If such a situation arose, State and tribal agencies would identify, recommend, and implement corrective management actions within 1 year, possibly including appropriate land-use restrictions to promote growth of the wolf population.
(5) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any wolf or part thereof from the experimental populations taken in violation of the regulations in paragraph (i) of this section or in violation of applicable State or tribal fish and wildlife laws or regulations or the Endangered Species Act.
(6) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be committed any offense defined in this paragraph (i).
(7) The sites for reintroduction are within the historic range of the species:
(i) The nonessential experimental population area includes all of Wyoming.
(ii) All wolves found in the wild within the boundaries of this paragraph (i)(7) will be considered nonessential experimental animals. In the conterminous United States, a wolf that is outside an experimental area (as defined in paragraph (i)(7) of this section) would take on the status for wolves in the area in which it is found unless it is marked or otherwise known to be an experimental animal; such a wolf may be captured for examination and genetic testing by the Service or Service-designated agency. Disposition of the captured animal may take any of the following courses:
(A) If the animal was not involved in conflicts with humans and is determined likely to be an experimental wolf, it may be returned to the reintroduction area.
(B) If the animal is determined likely to be an experimental wolf and was involved in conflicts with humans as identified in the management plan for the closest experimental area, it may be relocated, placed in captivity, or killed.
(C) If the animal is determined not likely to be an experimental animal, it will be managed according to any Service-approved plans for that area or will be marked and released near its point of capture.
(D) If the animal is determined not to be a wild gray wolf or if the Service or agencies designated by the Service determine the animal shows physical or behavioral evidence of hybridization with other canids, such as domestic dogs or coyotes, or of being an animal raised in captivity, it may be returned to captivity or killed.
(8) The reintroduced wolves will be monitored during the life of the project, including by the use of radio telemetry and other remote sensing devices as appropriate. All released animals will be vaccinated against diseases and parasites prevalent in canids, as appropriate, prior to release and during subsequent handling. Any animal that is sick, injured, or otherwise in need of special care may be captured by authorized personnel of the Service or Service-designated agencies and given
(9) The Service does not intend to reevaluate the “nonessential experimental” designation. The Service does not foresee any likely situation that would result in changing the nonessential experimental status until the gray wolf is recovered and delisted in the northern Rocky Mountains according to provisions outlined in the Act.
(n) Gray wolf (
(2) The Service finds that management of nonessential experimental gray wolves, as defined in this paragraph (n), will further the conservation of the species.
(3) Definitions of terms used in paragraph (n) of this section follow:
(i) On his or her own property;
(ii) Not trespassing and has the landowner's permission to bring his or her stock animal or dog on the property; or
(iii) Abiding by regulations governing legal presence on public lands.
(4)
(i)
(n)(6) of this section.
(ii)
(iii)
(A) Any landowner may immediately take a gray wolf in the act of attacking livestock or dogs on his or her private land, provided the landowner provides evidence of livestock or dogs recently (less than 24 hours) wounded, harassed, molested, or killed by wolves, and we or our designated agent(s) are able to confirm that the livestock or dogs were wounded, harassed, molested, or killed by wolves. The carcass of any wolf taken and the area surrounding it should not be disturbed in order to preserve physical evidence that the take was conducted according to this rule. The take of any wolf without such evidence of a direct and immediate threat may be referred to the appropriate authorities for prosecution.
(B) A landowner may take wolves on his or her private land if we or our designated agent issued a “shoot-on-sight” written take authorization of limited duration (45 days or less), and if:
(
(
(
(iv)
(A) At our or our designated agent(s)' discretion, we or our designated agent(s) also may issue a shoot-onsight written take authorization of limited duration (45 days or less) to a public land grazing permittee to take problem wolves on that permittee's active livestock grazing allotment if:
(
(
(
(B) The permittee must conduct the take in compliance with the written take authorization issued by the Service or our designated agent(s).
(v)
(A) In order for this provision to apply, the State or Tribes must prepare a science-based document that:
(
(
(
(
(
(B) Before we authorize lethal removal, we must determine that an unacceptable impact to wild ungulate populations or herds has occurred. We also must determine that the proposed lethal removal is science-based, will not contribute to reducing the wolf population in the State below 20 breeding pairs and 200 wolves, and will not impede wolf recovery.
(vi)
(vii)
(viii)
(A) Evidence of wounded livestock, dogs, or other domestic animals, or remains of livestock, dogs, or domestic animals that show that the injury or death was caused by wolves, or evidence that wolves were in the act of attacking livestock, dogs, or domestic animals;
(B) The likelihood that additional wolf-caused losses or attacks may occur if no control action is taken;
(C) Evidence of unusual attractants or artificial or intentional feeding of wolves; and
(D) Evidence that animal husbandry practices recommended in approved allotment plans and annual operating plans were followed.
(ix)
(x)
(xi)
(A) Scientific purposes;
(B) To avoid conflict with human activities;
(C) To further wolf survival and recovery;
(D) To aid or euthanize sick, injured, or orphaned wolves;
(E) To dispose of a dead specimen;
(F) To salvage a dead specimen that may be used for scientific study;
(G) To aid in law enforcement investigations involving wolves; or
(H) To prevent wolves or wolf-like canids with abnormal physical or behavioral characteristics, as determined by the Service or our designated agent(s), from passing on or teaching those traits to other wolves.
(I) Such take must be reported to the Service within 7 days as outlined in paragraph (n)(6) of this section, and specimens are to be retained or disposed of only in accordance with directions from the Service.
(xii)
(xiii)
(5)
(6)
(7) No person shall possess, sell, deliver, carry, transport, ship, import, or export by any means whatsoever, any wolf or part thereof from the experimental populations taken in violation of the regulations in paragraph
(8) It is unlawful for any person to attempt to commit, solicit another to commit, or cause to be committed any offense defined in this section.
(9) The sites for these experimental populations are within the historic range of the species as designated in paragraph (i)(7) of this section:
(i) The nonessential experimental population area includes all of Wyoming.
(ii) All wolves found in the wild within the boundaries of this experimental area are considered nonessential experimental animals.
(10) Wolves in the experimental population areas will be monitored by radio-telemetry or other standard wolf population monitoring techniques as appropriate. Any animal that is sick, injured, or otherwise in need of special care may be captured by authorized personnel of the Service or our designated agent(s) and given appropriate care. Such an animal will be released back into its respective area as soon as possible, unless physical or behavioral problems make it necessary to return the animal to captivity or euthanize it.
(11)
(i) A State or Tribal petition for wolf management under an MOA must show:
(A) That authority and management capability resides in the State or Tribe to conserve the gray wolf throughout the geographical range of all experimental populations within the State or within the Tribal reservation.
(B) That the State or Tribe has an acceptable conservation program for the gray wolf, throughout all of the NEP areas within the State or Tribal reservation, including the requisite authority and capacity to carry out that conservation program.
(C) A description of exactly what parts of the approved State or Tribal plan the State or Tribe intends to implement within the framework of this rule.
(D) A description of the State or Tribal management progress will be reported to the Service on at least an annual basis so the Service can determine if State or Tribal management has maintained the wolf population above recovery levels and was conducted in full compliance with this rule.
(ii) The Secretary will approve such a petition upon a finding that the applicable criteria are met and that approval is not likely to jeopardize the continued existence of the endangered gray wolf, as defined in § 17.11(h).
(iii) If the Secretary approves the petition, the Secretary will enter into an MOA with the Governor of that State or appropriate Tribal representative.
(iv) An MOA for State or Tribal management as provided in this section may allow a State or Tribe to become designated agents and lead management of nonessential experimental gray wolf populations within the borders of their jurisdictions in accordance with the State's or Tribe's wolf management plan approved by the Service, except that:
(A) The MOA may not provide for any form of management inconsistent with the protection provided to the species under this rule, without further opportunity for appropriate public comment and review and amendment of this rule;
(B) The MOA cannot vest the State or Tribe with any authority over matters concerning section 4 of the Act (determining whether a species warrants listing);
(C) The MOA may not provide for public hunting or trapping absent a finding by the Secretary of an extraordinary case where population pressures within a given ecosystem cannot be otherwise relieved; and
(D) In the absence of a Tribal wolf management plan or cooperative agreement, the MOA cannot vest a State with the authority to issue written authorizations for wolf take on reservations. The Service will retain the authority to issue these written authorizations until a Tribal wolf management plan is approved.
(v) The MOA for State or Tribal wolf management must provide for joint law enforcement responsibilities to ensure that the Service also has the authority to enforce the State or Tribal management program prohibitions on take.
(vi) The MOA may not authorize wolf take beyond that stated in the experimental population rules but may be more restrictive.
(vii) The MOA will expressly provide that the results of implementing the MOA may be the basis upon which State or Tribal regulatory measures will be judged for delisting purposes.
(viii) The authority for the MOA will be the Act, the Fish and Wildlife Act of 1956 (16 U.S.C. 742a–742j), and the Fish and Wildlife Coordination Act (16 U.S.C. 661–667e), and any applicable treaty.
(ix) In order for the MOA to remain in effect, the Secretary must find, on an annual basis, that the management under the MOA is not jeopardizing the continued existence of the endangered gray wolf as defined in § 17.11(h). The Secretary or State or Tribe may terminate the MOA upon 90 days notice if:
(A) Management under the MOA is likely to jeopardize the continued existence of the endangered gray wolf as defined in § 17.11(h); or
(B) The State or Tribe has failed materially to comply with this rule, the MOA, or any relevant provision of the State or Tribal wolf management plan; or
(C) The Service determines that biological circumstances within the range of the gray wolf indicate that delisting the species is not warranted; or
(D) The States or Tribes determine that they no longer want the wolf management authority vested in them by the Secretary in the MOA.
(a)
Gray Wolf (
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; trip limit reduction.
NMFS reduces the trip limit for the commercial sector of Atlantic migratory group Spanish mackerel in the southern zone to 1,500 lb (680 kg) of Spanish mackerel per day in or from the exclusive economic zone (EEZ). This trip limit reduction is necessary to protect the Spanish mackerel resource.
The rule is effective 6 a.m., local time, February 20, 2015, until 12:01 a.m., local time, March 1, 2015, unless changed by subsequent notification in the
Susan Gerhart, telephone: 727–824–5305, or email:
The fishery for coastal migratory pelagic fish (king mackerel, Spanish mackerel, and cobia) is managed under the Fishery Management Plan for the Coastal Migratory Pelagic Resources of the Gulf of Mexico and South Atlantic (FMP). The FMP was prepared by the Gulf of Mexico and South Atlantic Fishery Management Councils (Councils) and is implemented under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act) by regulations at 50 CFR part 622.
Framework Amendment 1 to the FMP (79 FR 69058, November 20, 2014) increased the commercial annual catch limit (equal to the commercial quota) to 3.33 million lb (1.51 million kg) for the Atlantic migratory group of Spanish mackerel. The Atlantic EEZ is divided into a northern and southern zone for management purposes of Atlantic migratory group Spanish mackerel. The southern zone for Atlantic migratory group Spanish mackerel extends from 30°42′45.6″ N. lat., which is a line directly east from the Georgia/Florida boundary, to 25°20.4′ N. lat., which is a line directly east from the Miami-Dade/Monroe County, Florida, boundary. The northern and southern zones will have their own quotas as of March 1, 2015, the beginning of the next fishing year, with implementation of Amendment 20B to the FMP (80 FR 4216, January, 27, 2015).
For the southern zone, seasonally variable trip limits are based on an adjusted commercial quota of 3.08 million lb (1.40 million kg). The adjusted commercial quota is calculated to allow continued harvest in the southern zone at a set rate for the remainder of the current fishing year, February 28, 2015, in accordance with 50 CFR 622.385(b)(2). As specified at 50 CFR 622.385(b)(1)(ii)(B), beginning December 1, annually, the trip limit is unlimited on weekdays and limited to 1,500 lb (680 kg) of Spanish mackerel per day on weekends. As specified at 50 CFR 622.385(b)(1)(ii)(C), after 75 percent of the adjusted commercial quota of Atlantic migratory group Spanish mackerel is taken until 100 percent of the adjusted commercial quota is taken, Spanish mackerel in or from the EEZ in the southern zone may not be possessed on board or landed from a permitted vessel in amounts exceeding 1,500 lb (680 kg) per day.
NMFS has determined that 75 percent of the adjusted commercial quota for Atlantic group Spanish mackerel has been harvested. Accordingly, the 1,500-lb (680-kg) per day commercial trip limit applies to Spanish mackerel in or from the EEZ in the southern zone effective 6 a.m., local time, February 20, 2015, until 12:01 a.m., local time, March 1, 2015, unless changed by subsequent notification in the
The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of Atlantic migratory group Spanish mackerel and is consistent with the Magnuson-Stevens Act and other applicable laws.
This action is taken under 50 CFR 622.385(b)(1)(ii)(C) and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.
Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA, (AA), finds good cause to waive the requirements to provide prior notice and the opportunity for public comment on this temporary rule. Such procedures are unnecessary because the rule itself has already been subject to notice and comment, and all that remains is to notify the public of the trip limit reduction.
Allowing prior notice and opportunity for public comment is contrary to the public interest because of the need to immediately implement this action to protect the Atlantic migratory group Spanish mackerel resource because the capacity of the commercial fleet allows for rapid harvest of the quota. Prior notice and opportunity for public comment would require time and could potentially result in a harvest well in excess of the established quota.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
Federal Highway Administration (FHWA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM).
The FHWA proposes to establish a process for the development of a State asset management plan in accordance with section 1106 of the Moving Ahead for Progress in the 21st Century Act (MAP–21), to improve or preserve the condition of the assets and the performance of the National Highway System (NHS) as they relate to physical assets. In this document “asset management plan” and “risk-based asset management plan” are used interchangeably. An asset management plan is a key management tool for highway infrastructure owners. State departments of transportation (State DOT) increasingly use asset management plans to make decisions about where and when to invest State and Federal funds in highway infrastructure improvements to achieve and sustain a desired state of good repair over the life cycle of the assets at minimum practicable cost. The development and implementation of an asset management plan also is an important part of the overall MAP–21 framework for enhancing the management and performance of transportation highway infrastructure funded through the Federal-aid highway program (FAHP). The asset management plan required by section 1106 of MAP–21 will provide States with critical data and identify investment and management strategies to improve or preserve the condition of the assets and the performance of the NHS. Under section 1106, the plan must include strategies leading to a program of projects that would make progress toward achievement of the State targets for asset condition and performance of the NHS in accordance with section 1203(a) of MAP–21, and supporting progress toward the achievement of the national goals identified in section 1203(a).
While the primary purpose of this proposed rule is to address asset management plan requirements in section 1106, this proposed rule also would address other MAP–21 requirements that relate to asset management. The proposed rule defines the minimum standards that States would use in developing and operating highway bridge and pavement management systems as required by section 1203(a) of MAP–21. Also, this proposed rule would address the requirements in section 1315(b) of MAP–21 by requiring States to conduct statewide evaluations to determine if reasonable alternatives exist to roads, highways, or bridges that repeatedly require repair and reconstruction activities from emergency events. The proposed rule would require State DOTs to take these evaluations into account in their asset management plans for facilities that are included in the plans.
Comments must be received on or before April 21, 2015. Late-filed comments will be considered to the extent practicable.
To ensure that you do not duplicate your docket submissions, please submit them by only one of the following means:
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Ms. Nastaran Saadatmand, Office of Asset Management, 202–366–1336,
This document and all comments received may be viewed online through the Federal eRulemaking portal at
This regulatory action would establish a process that States DOTs would use to develop a State asset management plan, in accordance with section 1106(a) of MAP–21, codified as 23 U.S.C. 119. Asset management, as defined in 23 U.S.C. 101(a)(2), is “a strategic and systematic process of operating, maintaining, and improving physical assets, with a focus on both engineering and economic analysis based on quality information, to identify a structured sequence of maintenance, preservation, repair, rehabilitation, and replacement actions that will achieve and sustain a desired state of good repair over the life cycle of the assets at minimum practicable cost.” Asset management plans are an important highway infrastructure management tool to improve and preserve the condition of assets and system performance. Asset management plans help agencies answer five core questions:
(1) What is the current status of our assets?
(2) What is the required condition and performance of those assets?
(3) Are there critical risks that must be managed?
(4) What are the best investment options available for managing the assets?
(5) What is the best long-term funding strategy?
The need for effective asset management practices nationwide stems from a combination of challenges facing the State DOTs and FHWA. First, the nature of the FAHP has changed over the last several decades. Whereas the FAHP once primarily funded major new-location infrastructure projects, today the FAHP primarily focuses on preserving existing infrastructure through preventative maintenance and reconstruction. This work is complicated by the variable effects of increased usage, infrastructure age, and deterioration and damage from environmental conditions, including extreme weather. Second, funding needs for the FAHP far exceed available Federal funding. Making sound investment decisions is more important in an environment of financial scarcity. Third, the expectations of Congress and the general public have changed since the early days of the FAHP. Today, both expect highly transparent, accountable, data-driven decisionmaking about the investment of FAHP funds. The asset management requirements of 23 U.S.C. 119, together with the performance measures and targets established under 23 U.S.C. 150(c) and (d), will create national minimum requirements for practices that will help State DOTs and FHWA address these challenges.
State DOTs are required to develop and implement asset management plans for the NHS to improve or preserve the condition of the assets and the performance of the NHS relating to physical assets. 23 U.S.C. 119(e)(1). State asset management plans must include strategies leading to a program of projects that would: (1) Make progress toward achievement of the State targets for asset condition and performance of the NHS in accordance with 23 U.S.C. 150(d), and (2) support progress toward the achievement of the national goals identified in 23 U.S.C. 150(b). 23 U.S.C. 119(e)(2).
State DOTs' asset management plans must include a minimum scope (
Under the proposed rule, the State DOT would be required to include measures and targets for all assets included in the asset management plan. Performance measures can be used for a number of purposes in asset management. For example, an agency may use performance measures to evaluate a range of potential solutions to a transportation need, to track the impacts of investments, and to provide accountability to the public. Performance measures are an integral part of a data-driven, performance-based approach to asset management. Agencies develop targets related to their performance measures to guide their resource allocation and program delivery. Targets may represent the desired future in a relatively long-term context, taking into account existing baseline conditions, budget constraints, and longer-term goals. Alternatively, agencies may use targets to measure the interim progress on a measure, in a relatively short-term context, as agencies implement their transportation program. For NHS pavement and bridge assets, which the State is required to include in its asset management plan, the State DOT's plan would include the national measures for bridge and pavement condition established by FHWA (see FHWA's related NPRM on Performance Management Measures for Bridges and Pavement, RIN 2125–AF53), and the targets the State DOT develops for those measures. Those measures and targets will be established pursuant to requirements under 23 U.S.C. 150(c) and (d). If a State DOT has pre-existing measures and targets for pavements and bridges on the NHS and wishes to continue to include those in its plan as part of its asset management effort, it may do so. However, those pre-existing measures and targets cannot and will not substitute for the national measures under 23 U.S.C. 150(c) or the required section 150(d) State targets for those national measures either in the required asset management plan or other provisions under title 23. For any additional assets the State DOT decides to include in its asset management plan, the State DOT would develop its own measures and targets.
These proposed regulations would ensure that State DOTs establish and follow a set of processes to identify the investment strategies included in the asset management plans. These processes relate to performing analyses at the program level, including performance gap analysis, life-cycle cost analysis, and risk analysis. The intention is all State DOTs will use asset management to undertake a strategic and systematic process of effectively operating, maintaining, upgrading, and expanding physical assets throughout their life cycles in order to achieve and sustain a desired state of good repair. The goal is better decisionmaking that is based upon quality information and well-defined objectives, and considers risks to the assets and system performance as part of the decisionmaking process.
In addition to the asset management plan process required under 23 U.S.C. 119(e)(8), this proposed rule addresses other requirements established in 23 U.S.C. 150 and in section 1315(b) of MAP–21. This proposed rule would define the minimum standards that States would use in developing and operating highway bridge and pavement management systems required under 23 U.S.C. 150(c)(3)(A)(i). This proposed rule would require States to address the requirements in MAP–21 section 1315(b) by conducting evaluations to determine if reasonable alternatives exist to roads, highways, or bridges that repeatedly require repair and reconstruction activities from emergency events. The proposed rule would require States to take these evaluations into account in their asset management plans to the extent those assets are included in the asset management plan.
Section 515.001 would clarify that the purposes of the proposed rule are to: (1) Establish the processes that a State DOT would be required to use to develop its asset management plan, as required under 23 U.S.C. 119(e); (2) establish the minimum content requirements that apply to the development of an asset management plan; (3) set forth the minimum standards for a State DOT to use in developing and operating bridge and pavement management systems as required under 23 U.S.C. 150(c)(3)(A)(i); (4) describe the statutory penalties for a State DOT's failure to develop and implement an asset management plan in accordance with 23 U.S.C. 119 and the requirements established through this rulemaking; and (5) establish the requirements for State DOTs to conduct periodic evaluations to determine if reasonable alternatives exist to roads,
Section 515.003 specifies that the proposed rule would be applicable to all State DOTs.
Section 515.005 includes definitions for certain terms that would be applicable to the proposed regulations. With respect to the definition of
Section 515.007 proposes the processes that State DOTs would be required to use in developing their asset management plans. These processes align with the minimum content elements that the statute (23 U.S.C. 119) requires to be included in the asset management plan, and also align with the contents the proposed rule would require in asset management plans under section 515.009. These processes take a broad look at the NHS as a network.
Under the proposed section 515.007, State DOTs would use the following processes to develop their asset management plans:
First, each State DOT would be required to establish a process for conducting a performance gap analysis and to identify strategies to close gaps. A performance gap analysis identifies deficiencies that may be hindering achievement of the State DOT's targets for asset condition and the State's desired system performance as it relates to physical assets on the NHS. As previously indicated, if the State DOT chooses to include other public roads or assets in the asset management plan, then the State DOT would be required to conduct a performance gap analysis for those other roads and assets as well.
Second, each State DOT would be required to establish a process for conducting life-cycle cost analysis for an asset class or asset sub-groups at the network level. Life cycle cost analysis is used to develop a strategic treatment plan for the whole life of assets. The strategic treatment plan considers application of all possible treatments during the asset's life (
Third, to ensure the asset management plan is risk-based, as required by 23 U.S.C. 119(e)(1), each State DOT would be required to establish a process for undertaking a risk management analysis for assets in the plan. As part of this process, State DOTs would identify and assess risks (
Fourth, each State DOT would be required to establish a process for developing a financial plan covering a 10-year period. The process would include a method to determine estimated costs of expected future work and estimated available funding.
Fifth, each State DOT would be required to establish a process for developing investment strategies to improve or preserve the condition of the assets and the performance of the NHS, and leading to a program of projects that would make progress toward achievement of the State targets for asset condition and performance of the NHS established pursuant to 23 U.S.C. 150(d) and supporting the progress toward achievement of the national goals identified in 23 U.S.C. 150(b). 23 U.S.C. 119(e)(1)–(2).
Finally, each State DOT would be required to use pavement and bridge management systems to analyze the condition of Interstate highway pavements, non-Interstate NHS pavements and NHS bridges, and to determine optimal management and investment strategies. Pavement and bridge management systems can support an agency's asset management practices by supporting the development of strategic performance objectives for the pavement and bridge assets and related highway systems. There are three major components to pavement and bridge management systems. Those are a system to regularly collect condition data; a computer database to sort and store the data; and an analysis program to evaluate repair, preservation, maintenance, and other management strategies and identify cost effective project options. State DOTs typically use commercially available software for the database and analysis components. State DOTs will be required to operate these systems under 23 U.S.C. 150(c)(3)(A)(i). The FHWA also proposes the minimum standards each State DOT would need to meet in developing these management systems. These minimum standards would govern collecting, processing, storing, and updating data; forecasting deterioration; comparing cost benefit for alternative work types; identifying short and long range budget needs; determining optimal strategies on identified potential projects to manage pavements and bridges; and recommending programs and schedules for implementation.
Section 515.009 proposes the minimum content requirements that would be applicable to State DOT asset management plans. The proposed content of the plans, described below, would be derived largely from the application of the processes FHWA proposes under section 515.007.
First, this section of the proposed rule would describe the requirement for the State DOT to develop and implement an asset management plan to achieve and sustain a state of good repair over the life cycle of the assets, and to improve or preserve the condition of the NHS in accordance with 23 U.S.C. 119(e)(1)–(2). Pursuant to 23 U.S.C. 119(e)(4)(A), the State DOT would be required to include NHS highway pavements and bridges regardless of the ownership of the relevant NHS facility. The State DOT would be encouraged, but not required, to include in its asset management plan all other highway infrastructure assets within the NHS ROW, as well as
Second, each State DOT would be required, at a minimum, to include the following information in its asset management plan:
• Asset management objectives, which should align with the agency's mission. The objectives must be consistent with the purpose of asset management, which is to achieve and sustain a desired state of good repair over the life cycle of the assets at a minimum practicable cost.
• Measures and targets designed to achieve and sustain a desired state of good repair over the life cycle of the assets at minimum practicable cost. This would include, at a minimum, the national measures that address the condition of pavements on the Interstate System, the condition of pavements on the NHS (excluding the Interstate), and the condition of bridges on the NHS. The FHWA will establish the national measures, pursuant to 23 U.S.C. 150(c)(3)(A)(ii)(I)–(III), in new regulations at 23 CFR part 490.
• A summary listing of the pavement and bridge assets on the NHS, including at a minimum a description of the condition of those assets for: Interstate pavement, non-Interstate NHS pavement, and NHS bridge assets. The FHWA proposes that each State DOT use these three categories in order to be consistent with the categories of performance measures that would be established under 23 U.S.C. 150(c)(3)(A)(ii). These requirements would apply regardless of what entity owns the NHS asset.
• Performance gap identification developed using the process the State DOT adopts pursuant to section 515.007.
• Life-cycle cost analysis developed using the process the State DOT adopts pursuant to section 515.007.
• Risk management analysis for assets and the highway network included in the plan, and including for those assets a summary of the results of the MAP–21 section 1315(b) statewide periodic evaluations; financial plan; and investment strategies. This analysis is developed using the process the State DOT adopts pursuant to section 515.007.
Third, asset management plans would be required to cover a minimum 10-year period. The FHWA proposes this time period because MAP–21 calls for asset management plans to evaluate investment options on a life-cycle basis. If the time period covered by the plan is too short, it likely will result in the adoption of short-term solutions that may not be truly cost-effective. If the time period is too long, the State DOT may have little certainty about financial resources available in the later years of the plan. This would hinder the usefulness of the plan as a realistic guide for investment decisions. The proposed 10-year period is consistent with feedback received during the outreach activities carried out in anticipation of this rulemaking.
Fourth, each State DOT would be required to discuss in its asset management plan a set of investment strategies leading to an immediate program of projects, as described in 23 U.S.C. 119(e)(2). The State DOT should include projects consistent with its investment strategies in its Statewide Transportation Improvement Program (STIP), and select projects from the STIP to support its efforts to achieve the State's targets for asset condition and performance of the NHS.
Finally, FHWA proposes to require each State DOT to make its asset management plan available to the public, and encourages the State DOTs to do so in a format that is easily accessible.
Section 515.011 proposes a process that would enable a State DOT to phase in the development of its asset management plan. The FHWA recognizes that a phase-in approach would help give State DOTs adequate time to develop and apply the analytical processes required under proposed section 515.007. The phase-in approach also takes into consideration the likely timing of the performance management rulemaking proceedings for pavement and bridge conditions under 23 U.S.C. 150 (RIN 2125–AF53). The proposed phase-in would permit a State DOT to submit its initial asset management plan using best available information in each required analysis area, omit certain analyses, and exclude the 23 U.S.C. 150(c) measures and the related State DOT section 150(d) targets. However, the State DOT would be required to include in its initial plan a description of the asset management plan development processes the State DOT proposes to use pursuant to section 515.007. Inclusion of the proposed processes in the initial plan will permit FHWA to use the initial plan to review and certify the State DOT's processes as required by 23 U.S.C. 119(e)(6). The proposed rule also would require the State DOT to include in its initial plan its own measures and targets for assets covered by the plan. Under the proposed rule, not later than 18 months after the effective date of the final rulemaking for pavement and bridge condition measures pursuant to 23 U.S.C. 150, State DOTs would have to amend their asset management plans to incorporate complete analyses carried out using certified processes and the section 150 measures and targets. Under the proposed rule, FHWA could extend the 18-month deadline for submitting an amended plan as needed to provide 12 months between the time FHWA certifies the State DOT's processes under 23 U.S.C. 119(e)(6)(A) and the date the amended plan is due. The FHWA could grant the extension only if it determines the State DOT's initial plan meets the requirements of proposed section 515.011.
Section 515.013 proposes the process by which a State DOT would submit its asset management plan development processes to FHWA for certification pursuant to 23 U.S.C. 119(e)(6), and its asset management plan for an FHWA consistency determination under section 119(e)(5).
Section 515.015 discusses the penalties for a State DOT that does not develop and implement an asset management plan consistent with 23 U.S.C. 119 and the requirements of this proposed rule.
Section 515.017 describes how a State DOT may integrate asset management into its organizational mission, culture, and capabilities at all levels.
Section 515.019 proposes that the State DOT conduct a periodic statewide evaluation not less than every 4 years of the State's existing roads, highways, and
The costs and benefits were estimated for implementing the requirement for States to develop a risk-based asset management plan and to use pavement and bridge management systems that comply with the minimum standards proposed by this NPRM.
Based on information obtained from nine State DOTs, the total nationwide costs for all States to develop their asset management plans and for four States
The FHWA lacks data on the economic benefits of the practice of asset management as a whole. The field of asset management has only become common in the past decade and case studies of economic benefits from overall asset management have not been published. We specifically request that commenters submit data on the quantitative benefits of asset management and reference any studies focusing on the economic benefits of overall asset management.
While FHWA lacks data on the overall benefits of asset management, there are examples of the economic savings that result from the most typical component sub-sets of asset management, pavement and bridge management systems. Using an Iowa DOT study
Based on the benefits derived from the Iowa DOT study and the estimated costs of asset management plans and acquiring pavement management systems, the ratio of benefits to costs would be 10.5 at a 3 percent discount rate and 9.3 at a 7 percent discount rate. The estimated benefits do not include the potential benefits resulting from savings in bridge programs. The benefits for States already practicing good asset management decisionmaking using their pavement management systems will be lower, as will the costs. If the requirement to develop asset management plans only marginally influences decisions on how to manage the assets, benefits are expected to exceed costs. The FHWA requests comments on these estimates.
Historically, construction and expansion of roads, bridges, and other transportation infrastructure in the United States have been a central focus of transportation agencies. Highway infrastructure development peaked with the construction of the Interstate Highway System. Today, significant portions of our highway assets are deteriorating because of increased usage, environmental impacts, and aging. As a result, it is becoming increasingly necessary to focus on meeting the demands of maintenance, preservation, and reconstruction of existing infrastructure. As State DOTs and other public sector owners of highway infrastructure are faced with increased system and budgetary needs at a time when resources are limited, asset management is critical now more than ever.
In recent years, most transportation agencies have experienced reduced funding coupled with a loss of purchasing power. In addition, the fact that the transportation system is aging and becoming more costly to maintain has become a great concern. Federal, State, and local governments are under increasing pressure to balance their budgets and, at the same time, respond to public demands for quality services. Along with the need to invest in America's future, this leaves transportation agencies with the task of managing the current transportation systems as cost-effectively as possible, while managing potential risks to system performance.
The Asset Management Plan requirement included in MAP–21 is in line with international best practices that were initiated abroad as the public sector in many countries experienced a reduction in resources available to maintain their assets in a state-of-good-repair. States in the U.S. have incorporated some elements of the asset management framework. However, despite the obvious benefits stemming from the use of an asset management framework, it has not yet been adopted by all States. The FHWA believes the disconnect results from States' current practices. As an example, in many State DOTs the pavement management analysis is done at the State DOT's central office. The output is then forwarded to the district/regional offices that make the final decisions and have a lot of flexibility in what projects to take on. As a result, the projects are selected by field personnel whose expertise is in addressing immediate needs. The concept of project selection
All State DOTs currently manage their transportation network along with its assets; however, few apply risk-based asset management principles in their investment decisionmaking processes. For example, although most States conduct risk analyses at the project level, risk assessment and management at the program level is often a missing component of current management practices. Congress has recognized the importance of risk analysis in asset management by expressly requiring the State asset management plan to be risk-based. 23 U.S.C. 119(e)(1). State DOTs must carefully analyze the impact on the long-term performance of the highway network when making decisions regarding funding distribution, especially when funding is reduced for one program and diverted to meet the pressing needs of another program. The impact of these tradeoffs could become very costly if appropriate analyses are not conducted prior to decisionmaking.
Although risk-based asset management is a relatively new concept to transportation agencies, most State DOTs have many of the elements necessary to initiate asset management, including pavement and bridge management systems that monitor conditions, measure performance, predict trends, and recommend candidate projects and preservation treatments. Asset management brings a particular perspective to how an agency conducts its existing planning and programming procedures and reaches decisions. It suggests principles and techniques to apply in policymaking, planning, project selection, program tradeoffs, program delivery, data gathering, and management system application. Most importantly, it uses an effective communication tool—the asset management plan—to document how decisions regarding investment strategies are made, what actions are taken to improve or preserve the condition of the assets and system performance, how risks to system performance are managed, and how the costs of maintaining assets throughout their lives are considered. For State DOTs, development of a risk-based asset management plan will facilitate the communication between decisionmakers and stakeholders and assure the public that appropriate steps are taken when making transportation investment decisions.
In developing these proposed regulations, FHWA conducted Web conferences, face-to-face meetings, made presentations at national conferences, and held teleconferences with stakeholders, including State DOTs. These sessions were intended to provide opportunities for stakeholders to discuss experiences, potential strategies for developing and implementing risk-based asset management within the context of MAP–21, and concerns with the MAP–21 asset management requirements. In general, these consultations included:
At each of these outreach sessions, some participants expressed that States be provided with flexibility in the development of their asset management plans so that they can properly address any issues that are unique to their State. The burden associated with developing a risk-based asset management plan (
This proposal is intended to implement 23 U.S.C. 119(e)(8), which requires the Secretary to establish, by regulation, the process States must use to develop their asset management plans. The proposed regulations would ensure that State DOTs follow a set of processes to identify the investment strategies included in the asset management plan. These processes relate to performing analyses at the program level including performance gap analysis, life-cycle cost analysis, and risk analysis. The intention is that investment strategies included in the asset management plans are developed based on a thorough assessment of the NHS infrastructure operation, preservation, and improvement needs, while minimizing the whole life costs of assets and understanding the potential risks to system performance. While the best practice is to perform inclusive gap and risk analyses encompassing all the national performance goal areas for the NHS (see 23 U.S.C. 150(b)), for the purpose of asset management plan development pursuant to 23 U.S.C. 119, the focus of these analyses should be on determining deficiencies and risks to physical asset conditions and system
The overarching purpose of asset management is to achieve a desired state of good repair over the life cycle of assets at a minimum practicable cost. Development and implementation of a State asset management plan for NHS pavements and bridges is an important part of NHS performance management as envisioned in MAP–21. In 23 U.S.C. 119(e)(2), Congress provides that a State asset management plan shall include strategies leading to a program of projects that would make progress toward achievement of the State targets for asset condition and performance of the NHS in accordance with 23 U.S.C. 150(d), and supporting the progress toward the achievement of the national goals identified in 23 U.S.C. 150(b). Section 119(b)(3) specifies that the purpose of the National Highway Performance Program (NHPP) “. . . shall be . . . to ensure that investments of Federal-aid funds in highway construction are directed to support progress toward the achievement of performance targets established in an asset management plan of a State for the National Highway System.” Accordingly, the asset management plan developed pursuant to 23 U.S.C. 119(e) will serve as both a resource and a “road map” for the State's efforts to achieve and sustain a state of good repair over the life cycle of the assets, and to make progress toward those national goals and the State's targets for pavement and bridge condition established pursuant to 23 U.S.C. 150.
The FHWA recognizes that many State DOTs already use management systems as a critical element in their investment decisionmaking process. Those systems have been developed and refined, in many cases over a long period of time, through the State DOT's continuing evaluation of the effectiveness of investment strategies in improving infrastructure conditions. The FHWA also recognizes that the measures used in these legacy systems for pavement and bridge conditions may not be identical to the national measures FHWA establishes under 23 U.S.C. 150(c). Considering this possibility, FHWA expects State DOTs will choose, and in some cases may be required by State law, to continue to use their legacy systems to assess infrastructure conditions and to develop strategies that will drive their investment decisionmaking. Accordingly, FHWA is proposing to permit State DOTs to include their pre-existing measures and targets for NHS pavement and bridge condition and performance in their plans even after the section 150 measures and targets are established, so long as those non-section 150 measures and targets are treated as supplemental to the section 150 measures and targets. Non-section 150 measures and targets cannot substitute for section 150 national measures and associated State DOT targets under 23 U.S.C. 150(d). The State DOTs will be held accountable for including section 150 measures and targets in their plans and meeting title 23 requirements relating to those section 150 measures and targets. However, a State DOT asset management plan's investment strategies may be influenced by both the section 150 measures and targets and any other measures and targets the State DOT includes in its asset management plan.
The FHWA expects State DOTs with legacy systems will make the changes needed to fully use and support the new national measures and targets once established pursuant to 23 U.S.C. 150. The FHWA understands and appreciates the amount of work required to make these changes. The FHWA is committed to providing technical assistance to State DOTs as they work to improve their ability to reliably predict how their investments can lead to pavement and bridge condition improvements as defined using the new national measures.
The FHWA is proposing special phase-in provisions as a part of this rulemaking. The proposed rule would provide a phase-in for both the asset management plans and the MAP–21 section 1315(b) evaluations of roads, highways, and bridges that repeatedly required repair and reconstruction activities. As the expected timelines for completing this rulemaking and the 23 U.S.C. 150 rulemaking become more certain, FHWA will be able to better predict how the timing of each rulemaking affects the other. The FHWA may revise the proposed phase-in approaches to address any timing or other issues resulting from the ultimate timelines and requirements in final rules implementing sections 119 and 150.
The proposed phase-in for section 119 asset management plans would permit a State DOT to submit its initial asset management plan using best available information for each required plan element, and to omit certain analyses. In addition, the State DOT would be permitted to submit its initial plan without the 23 U.S.C. 150 measures and targets unless the State DOT had established its section 150(d) targets for pavement and bridge conditions at least 6 months before the section 515.013(a) deadline in this proposed rule for submitting the initial asset management plan. The State DOT's initial asset management plan would have to include its proposed processes for each required area of analysis in proposed section 515.007, and otherwise meet the requirements in proposed section 515.009, including the identification of investment strategies that support progress toward the national goals in 23 U.S.C. 150(b).
Not later than 18 months after the effective date of the final rulemaking for pavement and bridge condition measures pursuant to 23 U.S.C. 150, a State DOT that used the phase-in option for its initial plan submission would be required to submit an amended plan that includes all section 515.007 analyses performed using FHWA-certified processes. That amended plan also would have to include the State DOT's section 150 measures and targets for NHS pavements and bridges. Under the proposed rule, FHWA could extend the 18-month time period as needed to provide 12 months between the time FHWA certifies the State DOT's processes under 23 U.S.C. 119(e)(6)(A) and the date the amended plan is due. The FHWA could grant the extension only if it determines the State DOT's initial plan meets the requirements of section 515.011 of this proposed rule.
The FHWA considered a number of factors in developing the phase-in proposal for asset management plans. First, the proposal responds to the challenges some State DOTs will face in developing and applying the processes described in proposed section 515.007. Both State DOTs with legacy asset management planning systems and State DOTs new to asset management may face time and resource challenges due to the need to develop and apply new or modified processes.
Second, the phase-in approach is needed to address timing and coordination issues inherent in the process certification and consistency determination provisions of 23 U.S.C. 119. With respect to process certification, FHWA proposes to use the State DOT's initial asset management plan as the basis for the certification of the State DOT's asset management plan
There also is a potential implementation issue with regard to FHWA consistency determinations under 23 U.S.C. 119(e)(5). The issue relates to the availability of the 23 U.S.C. 150 national performance measures and the related targets that State DOTs must include in their asset management plans. Investment strategies in an asset management plan, and the underlying analytical work such as performance gap analysis, are highly affected by the selected performance targets. There is a substantial probability that the FHWA performance management rulemaking under 23 U.S.C. 150, and the subsequent State DOT target-setting under section 150(d)(1), will not be completed in time for the State DOTs to include their section 150(d) targets in a fully developed asset management plan prior to the first required FHWA consistency determination. The first determination is required for the second fiscal year after this rule is final. Absent this consistency determination, the Federal share on the State DOT's NHPP projects would be reduced to 65 percent. The consistency determination also demonstrates the State DOT has an “approved plan” under the NHPP obligation transition provision in MAP–21 section 1106(b).
The phase-in proposal would permit FHWA to determine the State DOT's initial plan is consistent with 23 U.S.C. 119 and the final rule if it satisfies the plan requirements in proposed section 515.011. The State DOTs would have up to 18 months after the effective date of the final rulemaking for pavement and bridge condition measures pursuant to 23 U.S.C. 150 to amend their asset management plans to include the section 150 measures and the targets the State DOTs establish for those measures, and to include analyses prepared using FHWA-certified processes. The FHWA could extend the amendment deadline for up to 12 months to ensure the State DOT has a reasonable amount of time after FHWA certifies the State DOT's processes to complete the required analyses and incorporate the section 150 measures and targets into its plan. This 18-month period is consistent with the 18-month deadline in the MAP–21 section 1106(b)(1) transition provision governing obligations of NHPP funds in the absence of an approved asset management plan and 23 U.S.C. 150(d) targets. The extension proposal is consistent with the transition provision's extension authority in MAP–21 section 1106(b)(2).
It may be helpful to give an example to illustrate how the timing of the proposed asset management plan phase-in would work. If the final rule on asset management were issued on January 15, 2015, then—
(1) State DOTs would have to submit their initial asset management plans not later than January 15, 2016.
(2) Not later than April 14, 2016, the FHWA would notify a State DOT whether FHWA certifies the State DOT's processes.
(3) The reduced Federal share provision would be effective on October 1, 2016 (beginning of the second fiscal year after the rule is final), so the first consistency review required under 23 U.S.C. 119(e)(2) would occur on August 31, 2016. Unless the State DOT submitted an amended plan prior to that date, FHWA would base the first consistency determination on the State DOT's initial asset management plan.
(4) If the State DOT used the phase-in provision proposed in section 515.011 to submit an initial plan, the State DOT would be required to submit a plan with all required analyses and other elements, including 23 U.S.C. 150 measures and targets for pavement and bridges not later than 18 months after the effective date of the final rulemaking for pavement and bridge condition measures pursuant to 23 U.S.C. 150. The FHWA could extend the 18-month time period as needed to provide 12 months between the time FHWA certifies the State DOT's processes under 23 U.S.C. 119(e)(6)(A) and the date the amended plan is due. The FHWA could grant the extension only if it determines the State DOT's initial plan meets the requirements of proposed section 515.011. Thus, if the effective date of the section 150 rule on pavement and bridge measures is April 15, 2015, the 18-month period would end on October 15, 2016. However, under this timing example, if the certification of the State DOT's processes occurred on April 14, 2016, and the State DOT's initial plan met section 515.011 requirements, FHWA could extend the due date for an amended plan to April 14, 2017, to permit the State DOT to incorporate section 150 measures and targets and complete the required analyses using FHWA-certified processes.
For the section 1315(b) evaluation, FHWA proposes a phase in that would require State DOTs to complete the evaluation of assets included in the State DOT's asset management plan within 2 years after the effective date of a final rule. The State DOT would have to complete the evaluation for the rest of the affects roads, highways, and bridges not later than 4 years after the effective date of the final rule. This phase-in approach would permit State DOTs to focus their resources first on completing the section 1315(b) evaluation for assets they include in their asset management plans. The FHWA believes this approach is consistent with the emphasis Congress placed on the condition and performance of the NHS in MAP–21.
The FHWA specifically requests comments on whether these proposed phase-in approaches are desirable and workable.
This section is included to clarify that the purpose of the proposed regulations is to: (1) Establish the processes that a State DOT would use to develop its asset management plan, as required under 23 U.S.C. 119(e)(8); (2) establish the minimum content requirements that would apply to the development of an asset management plan; (3) set forth the minimum standards a State DOT would use in developing and operating bridge and pavement management systems as required under 23 U.S.C. 150(c)(3)(A)(i); (4) describe the statutory penalties for a State DOT's failure to develop and implement an asset management plan in accordance with 23 U.S.C. 119 and the requirements established by this rulemaking; and (5) establish that State DOTs would be required to conduct periodic statewide evaluations to determine if reasonable alternatives exist to roads, highways, or bridges that repeatedly require repair and reconstruction activities due to emergency events.
This section establishes that the proposed regulations would be applicable to all State DOTs.
This section includes proposed definitions for certain terms that are applicable to the proposed regulations. The terms the FHWA defines in this section are terms that FHWA believes need a common understanding for the effective implementation of the regulations. The FHWA invites comments on these proposed definitions and suggestions for any additional terms that should be defined.
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This section proposes minimum processes State DOTs would be required to use in developing their asset management plans. This section also proposes standards and outcomes the State DOT plan development processes would have to satisfy. The State DOTs would include descriptions of their processes in their asset management plans, and those processes would be subject to FHWA certification. The State DOT would use the processes to produce information it needs to develop the full plan contents required under 23 U.S.C. 119(e)(4) and in this proposed rule.
First, as required by 23 U.S.C. 119(e)(4), the FHWA proposes that State DOTs must establish a process for conducting performance gap analysis to identify deficiencies that may be hindering achievement of State DOTs' targets for condition and system performance as related to the physical assets. This process would include performance targets, gaps in the existing condition and desired condition of assets, gaps in the NHS effectiveness as it relates to the physical assets in providing for the safe and efficient movement of people and goods, and strategies to close these gaps. A State DOT would conduct a performance gap analysis for its NHS to meet requirements in 23 U.S.C. 119. As with the other required analyses under this proposed rule, if a State DOT chooses to include other public roads in the asset management plan, then the State DOT would conduct a performance gap analysis for those roads as well. States would develop the plan's recommended investment strategies based on the result of this gap analysis and other analyses required for the asset management plan.
Second, as required by 23 U.S.C. 119(e)(4), the FHWA proposes that each State DOT establish a process for conducting life-cycle cost analysis for asset classes or asset sub-groups at the network level. The State DOT would define the network level. The FHWA proposes that State DOTs have the flexibility to conduct life-cycle cost analyses on asset classes (
Third, FHWA proposes that each State DOT establish a process for developing a risk management analysis for assets in the plan. This process would include identification, assessment, evaluation, and prioritization of risks that can affect the assets in the plan, including NHS condition, effectiveness, and system performance as it relates to operation of its physical assets. This includes addressing risks to those assets in the plan that are evaluated pursuant to section 1315(b) of MAP–21 because they have required repair and reconstruction activities on two or more occasions due to emergency events. In addition, the risk management analysis would have to include an approach for addressing the risks that the State DOT determines to be high-priority risks. Relevant risks may include risks to assets and the system associated with current and future environmental conditions, including extreme weather events, climate change, and seismic activity.
Fourth, as required by 23 U.S.C. 119(e)(4), the FHWA proposes that each State DOT establish a process for developing a financial plan. The FHWA proposes that the financial plan would be required to identify annual costs over a minimum period of 10 years. In addition, the FHWA proposes the State DOT's process would have to produce a financial plan that addresses certain minimum components, including: The estimated cost of expected future work to implement investment strategies contained in the asset management plan; the estimated funding levels that are expected to be reasonably available to address the costs of future work types; identification of anticipated funding sources; and an estimate of the value of the agency's pavement and bridge assets and the needed investment to maintain the value of these assets. The purpose is to ensure that the adopted strategies are not only affordable, but that assets will be preserved and maintained with no risks of financial shortfall. In addition, having an estimate of asset value will enable agencies to predict the level of investment needed to ensure their systems will be financially sustainable. Also, the FHWA proposes that asset management plans cover a minimum period of 10 years to ensure that the decisionmaking process identifies investment strategies that advance toward a long-term physically and financially sustainable system.
Fifth, as required by 23 U.S.C. 119(e)(4), the FHWA proposes that each State DOT establish a process for developing investment strategies to: (1) Achieve and sustain a state of good repair, (2) improve or preserve the condition of the assets and the performance of the NHS, and (3) lead to a program of projects that would make progress toward achievement of the State targets for asset condition and performance of the NHS in accordance with 23 U.S.C. 150(d), and support progress toward the achievement of the national goals identified in 23 U.S.C. 150(b). The FHWA proposes that the State DOT's process for identifying investment strategies must address the following minimum components: Performance gap analysis required under section 515.007(a)(4); life-cycle cost analysis for asset classes or asset sub-groups resulting from the process required under 515.007(a)(5); risk management analysis resulting from the process required under 515.007(a)(6); and anticipated available funding and estimated cost of expected future work types associated with various candidate strategies based on the financial plan required under 515.007(b)(7). Investment strategies are necessary for State DOTs to know how they will best use their available resources for optimal system performance.
The FHWA proposes minimum standards each State DOT would use in developing and operating bridge and pavement management systems to analyze bridge and pavements data for the condition of Interstate highway pavements, non-Interstate NHS pavements, and NHS bridges. The use of these systems is required under 23 U.S.C. 150(c)(3)(A)(i). Also, Congress declared the use of bridge management systems to be in the vital interest of the United States in 23 U.S.C. 144(a)(2)(C). These standards would govern collecting, processing, storing, and updating data; forecasting deterioration; developing and comparing benefit-cost analyses for alternative work types; identifying short and long range budget needs; determining optimal strategies on identified potential projects to manage pavements and bridges; and recommending programs and schedules for implementation. The standards proposed by the FHWA are consistent with minimum standards included in the management systems most widely used by State DOTs. The FHWA specifically requests comments on whether the specified standards for bridge and pavement management systems are appropriate or whether any additional standards should be included.
The interaction of these proposed processes and related requirements is illustrated by a chart which is available on the rulemaking docket.
The final step in the asset management plan development process is the development of the plan itself. Accordingly, the FHWA proposes to require specifically that each State DOT develop an asset management plan pursuant to the prescribed processes, which includes conducting the necessary analyses pursuant to those processes. An asset management plan brings the results of these analyses together in a single plan and demonstrates how selection of investment strategies is influenced by analyses of cost effectiveness, system resiliency, financial stability, and desired system condition and performance. The rule proposes to require the head of the State DOT to approve the asset management plan.
This proposed section sets forth minimum content requirements that would apply to a State DOT asset management plan. Under this section of the proposed rule, the results of the development processes proposed in section 515.007 would inform the strategic decisions described in the plan. Consistent with the definition of asset management in 23 U.S.C. 101(a), asset management plans would describe how the State DOT will carry out “a strategic and systematic process of operating, maintaining, and improving physical assets, with a focus on both engineering and economic analysis based on quality information, to identify a structured sequence of maintenance, preservation, repair, rehabilitation, and replacement actions that will achieve and sustain a desired state of good repair over the life cycle of the assets at minimum practicable cost.” As required by 23 U.S.C. 119(e)(2), asset management plans would describe the State DOT's selected strategies to improve or preserve the condition of the
Each asset management plan would address management of pavements on the Interstate System, pavements on the NHS (excluding the Interstate System), and bridges on the NHS in accordance with 23 U.S.C. 119(e)(4)(A). As provided in 23 U.S.C. 119(e)(3), State DOTs are encouraged, but not required, to include all highway infrastructure assets within the NHS ROW in the plan. State DOTs also are encouraged to include the highway infrastructure assets from other public roads in their asset management plans and to manage such other assets consistent with the asset management plan. As previously noted, if a State DOT elects to include such other assets, all of the analysis and plan content requirements proposed in this rulemaking would apply. The FHWA seeks comment on whether States should be required to include tunnels in the asset management plans.
In section 515.009, FHWA proposes the minimum contents required in a State DOT's asset management plan would include those required under 23 U.S.C. 119. First, the plans would have to include the State DOT's asset management objectives. The objectives are to be consistent with the purpose of asset management, which is to achieve and sustain a desired state of good repair over the life cycle of the assets at a minimum practicable cost. An agency's objectives would set the context and direction for developing its asset management plan. These directions would be different from one agency to another, depending on past experience and its level of maturity in developing an asset management plan.
Second, State DOT's would be required to include measures and targets for the assets in their plans. The measures and targets would be used to show progress toward improving or preserving the condition of the various types of assets in the plan. At a minimum, State DOTs would need to include the 23 U.S.C. 150(c) national measures for pavement and bridge condition and performance, and the associated State targets developed pursuant to section 150(d), in their asset management plans once those measures and targets are established. However, FHWA recognizes that many States already have asset management plans, or elements of it in place that use measures and targets other than those that will be established pursuant to section 150. Given the level of effort required to substantially revise such plans, FHWA believes it is important to provide State DOTs with some flexibility to use and adapt those “legacy” plans. Accordingly, FHWA proposes to allow State DOTs to include non-section 150 measures and targets for NHS bridges and pavements in their plans so long as such measures do not substitute for the section 150 measures and targets. Non-section 150 measures and targets may be used to supplement the section 150 measures and targets, but such use would not relieve the State DOT from its responsibilities to meet title 23 requirements relating to section 150 measures and targets.
Third, the State DOTs would have to include in the plan a summary listing of the pavement and bridge assets, including those on the NHS, and a description of their condition: This includes the State DOT's Interstate pavement, non-Interstate NHS pavement, and NHS bridge assets. The FHWA proposes that State DOTs use these three categories in order to be consistent with the categories of condition and performance measures that will be established under 23 U.S.C. 150(c)(3)(A)(ii). The summary list would have to include a description of the condition of the assets in the plan. Where applicable, the description of condition would be informed by the results of the evaluation required under proposed section 515.019 of this rule. It is the State DOTs' responsibility to include all NHS pavements and bridge data regardless of NHS ownership.
In the Transportation Planning NPRM (RIN 2125–AF52), FHWA addresses cooperation among multiple owners and operators for collection of NHS condition and performance data as part of the metropolitan planning agreements. However, these agreements apply to the metropolitan transportation planning process. The FHWA proposes that State DOTs develop a process for a collaborative and coordinated effort among NHS multiple owners within the rural areas in order to obtain the necessary data for development of the asset management plans. The FHWA also considered whether States should coordinate with Metropolitan Planning Organizations (MPO) on the development of the asset management plan. Section 134(h)(2)(D) of title 23, U.S.C., requires MPOs to integrate in the metropolitan transportation planning process the “goals, objectives, performance measures, and targets described in other State transportation plans and transportation processes, as well as any plans developed under chapter 53 of title 49 by providers of public transportation, required as part of a performance-based program.” As proposed in section 450.306(d)(4)(i) of the Transportation Planning NPRM (RIN 2125–AF52), MPOs would be required to include in the metropolitan planning process the asset management plan developed in accordance with this rulemaking. As a result, FHWA believes that State DOTs should coordinate with MPOs during the development of the asset management plan.
Fourth, the plans would have to include the results of the analyses required under section 515.007. This includes performance gap identification, life-cycle cost analysis, risk management analysis, a financial plan, and investment strategies.
The FHWA also proposes that a State DOT's asset management plan, for the assets in the plan, summarize the results of the evaluations under proposed section 515.019 to determine whether reasonable alternatives exist for roads, highways, or bridges that repeatedly have required repair and reconstruction activities following emergency events. As previously discussed, section 515.019 of this proposed rule would require States to perform those statewide evaluations to fulfill the mandate in section 1315(b) of MAP–21. Proposed section 515.007 also would require the State DOT's risk analysis discussion in the plan to reflect consideration of the section 1315(b) evaluations for assets covered by the plan.
The FHWA proposes that asset management plans cover a minimum period of 10 years to ensure that the plan can support a decisionmaking process that identifies investment strategies that advance toward a long-term physically and financially sustainable system. The FHWA also proposes that asset management plans lead to an immediate program of projects in the STIP. It is the FHWA's view that a State DOT should select such projects from the STIP as part of its efforts to achieve and sustain a state of good repair, to improve or preserve the condition of the assets and the performance of the NHS, to make progress toward achievement of the State's targets for asset condition and performance of the NHS in accordance with 23 U.S.C. 150(d), and to support progress toward the achievement of the national goals identified in section 150(b).
In the proposed rule, the FHWA would require State DOTs to make their asset management plans available to the public, and encourages them to do so in
Finally, the proposed regulation would clarify that other title 23 regulations govern the establishment of the performance measures and State targets required by 23 U.S.C. 150, as well as the required reports on progress toward those targets. Inclusion of section 150 measures and targets in the State DOT's asset management plans is required under 23 U.S.C. 119, for purposes of carrying out the asset management planning process. However, use of the measures and targets in the plan would not fulfill the reporting or other requirements under section 150.
In this section, the FHWA proposes to establish a process that will enable State DOTs to phase-in the development of their asset management plans. The FHWA recognizes that State DOTs are at different levels of sophistication and readiness to develop and implement an effective asset management plan. While some States may already have all of the required processes in place and analyses performed, other States may be only beginning to explore asset management. Those States need to have sufficient time to develop and implement the required processes and plans. In addition, there is a timing issue relating to 23 U.S.C. 150 measures and targets that FHWA believes require a phased-in approach. The timing problems affect the ability of State DOTs to include the section 150 measures and targets for NHS pavement and bridges in their initial asset management plans, and also affects the annual FHWA consistency determination required under 23 U.S.C. 119(e)(5). The FHWA believes proposed section 515.011 would resolve these issues.
Section 119(e)(5) sets a deadline for compliance with the asset management plan provisions in 23 U.S.C. 119 by the beginning of the second fiscal year following the FHWA's establishment of the process for developing asset management plans. That process will be established through this rulemaking. Failure to develop and implement an asset management plan consistent with section 119 results in a reduced Federal share for NHPP projects. However, section 119(e)(2) requires asset management plans to include strategies leading to a program of projects that would make progress toward achievement of the States' targets for asset condition and performance of the NHS in accordance with 23 U.S.C. 150(d), and supporting progress toward the national goals identified in section 23 U.S.C. 150(b). The FHWA is establishing the section 150 measures through a separate rulemaking,
To address the risk that it may not be possible for the State DOTs to fully meet the section 119(e)(2) requirements with the first cycle of plan submissions, the FHWA proposes to permit State DOTs to submit their initial asset management plans based on criteria specified in proposed section 515.011. Under all circumstances, the State DOT's first plan submission would have to include its proposed processes for each required area in proposed section 515.007, State DOT measures and target for assets in the plan, and the State DOT's investment strategies. However, the proposed rule would give State DOTs the option of developing their initial asset management plans, including their investment strategies, using best available information in each required area. Investment strategies in the initial plan would have to satisfy the portion of section 119(e)(2) relating to the national goals in 23 U.S.C. 150(b). However, the plan's strategies would not have to address the section 150(d) targets unless the State DOT has established those targets at least 6 months before the plan submission deadline in section 515.013(a). The proposed rule also would permit a State DOT to omit the analyses for life-cycle costs, risk management, and the financial plan from its initial asset management plan.
The proposed exceptions from the requirements of sections 515.007 and 515.009 would apply only to the initial plan submission. The FHWA proposes to require State DOTs to amend their plans to include all the required analyses using FHWA-certified processes, the 23 U.S.C. 150 measures and targets, and investment strategies consistent with all of the requirements of 23 U.S.C. 119(e)(2), not later than 18 months after the effective date of the final rulemaking for pavement and bridge condition measures pursuant to 23 U.S.C. 150. However, under the proposed rule, FHWA could extend the 18-month time period as needed to provide 12 months between the time FHWA certifies the State DOT's processes under 23 U.S.C. 119(e)(6)(A) and the date the amended plan is due. The purpose of the proposed extension is to permit the State DOT a reasonable amount of time to incorporate section 150 measures and targets and complete the required analyses using FHWA-certified processes. Under the proposed rule, FHWA could grant the extension only if it determines the State DOT's initial plan meets the requirements of section 515.011. The proposed 18-month deadline for submission of an amended plan and the related extension provision mirror the deadline and extension provisions in MAP–21 section 1106(a)–(b), relating to limitations on FHWA's ability to obligate NHPP funds.
Under this proposed phase-in approach, FHWA may determine an initial plan that conforms with proposed section 515.011 meets the consistency requirements under 23 U.S.C. 119(e)(5). The consistency determination would fulfill the “approved plan” requirement in the NHPP obligation transition provision in MAP–21 section 1106(b). The amended asset management plan, and any subsequent asset management plan submitted to the FHWA for a consistency determination under section 119(e)(5) or recertification of processes under 23 U.S.C. 119(e)(6)(B), would have to meet all requirements in section 119(e)(2) and proposed sections 515.007 and 515.009 of this rule.
The FHWA specifically requests comment whether this proposed phase-in approach is desirable and workable.
In this section, the FHWA proposes the processes by which the State DOTs will submit to FHWA their asset management plan development processes for certification pursuant to 23 U.S.C. 119(e)(6), and their asset management plans for a consistency determination under 23 U.S.C. 119(e)(5). The procedures for process certification and plan consistency determination in proposed section 515.013 are important to the implementation of several provisions relating to Federal-aid funding. First, section 119(e)(5) requires the Secretary to determine for the second fiscal year after the establishment of the Federal requirements that are the subject of this rulemaking, and for each fiscal year thereafter, whether the State has developed and implemented an asset management plan consistent with section 119. The lack of a consistency determination will result in a reduced Federal share for NHPP projects under 23 U.S.C. 119(e)(5).
A second provision affected by process certification and consistency determination is the transition provision in section 1106(b) of MAP–21. The transition provision allows FHWA to obligate NHPP funds for a period of time even though a State DOT does not have an approved asset management plan or has not established performance targets as described in 23 U.S.C. 119 and 23 U.S.C. 150. The transition period expires when the State DOT has met those two requirements, but not later than 18 months after the effective date of the final performance management rulemaking under 23 U.S.C. 150. The FHWA may extend the 18-month transition period if FHWA determines the State DOT has made a good faith effort to establish an asset management plan and the performance targets described in sections 119 and 150. Once the transition period ends, FHWA cannot obligate NHPP funds for projects otherwise eligible under 23 U.S.C. 119(d) unless the State DOT has an approved asset management plan and the required performance targets.
As noted above, 23 U.S.C. 119(e)(6) requires that the FHWA review and certify that the processes used by the State DOTs to develop their asset management plans meet the requirements established through this rulemaking. The FHWA also is required to recertify the State DOT's processes at least every 4 years pursuant to 23 U.S.C. 119(e)(6)(B). In this rule, the FHWA proposes that State DOTs include the necessary asset management plan development processes as part of the initial asset management plan submitted to the FHWA not later than 1 year after the effective date of the final rule on asset management. This time frame is intended to give the State DOTs sufficient time to prepare their processes and other parts of their initial plans, and receive the required FHWA process certification and consistency determination, before the implementation deadline contained in 23 U.S.C. 119(e)(5). That deadline is the beginning of the second fiscal year after the effective date of the final rule establishing the asset management plan development process.
The FHWA would review and respond (
In addition, under proposed section 515.013(d), whenever a State DOT amends its asset management plan, it would be required to submit the amended plan to the FHWA for a new process certification at least 30 days prior to the deadline for the next FHWA's consistency determination (August 31 of each year). Minor technical corrections and revisions with no foreseeable material impact on the accuracy and validity of the analyses and investment strategies in the plan would not require submission to FHWA. If FHWA determines that a State DOT's processes do not meet the requirements of these proposed regulations, the State DOT will have an opportunity to cure the deficiencies, as required under 23 U.S.C. 119(e)(6)(C). The FHWA will send the State DOT a written notice of denial of certification or recertification that specifically identifies and lists the deficiencies. The State DOT will then have 90 days (which FHWA may extend upon request) to correct the deficiencies and resubmit its process to FHWA. If a State DOT's processes have minor deficiencies, then FHWA may proceed to certify the State DOT's processes on the condition that the minor deficiencies are corrected within 90 days of the receipt of the notification of certification. The State DOT must notify FHWA, in writing, once it has corrected the deficiencies.
The FHWA proposes to rely on the State DOT's most recently submitted asset management plan in making the annual consistency determination required by 23 U.S.C. 119(e)(5). The first consistency determination would be made by August 31 of the first fiscal year following the effective date of the final rule in this rulemaking. The subsequent consistency determinations would be made by August 31 of each fiscal year thereafter. The FHWA proposes the August 31 date to give a State DOT time to adjust its program in the event the State DOT receives a negative determination and the Federal share is reduced for the next fiscal year. The FHWA requests comments on whether this time period is needed, and whether the proposed 30-day period between the determination and the start of the next fiscal year is sufficient.
Except for the proposed phase-in for initial plans under section 515.011, in order for FHWA to find a plan consistent with the asset management requirements in 23 U.S.C. 119, the plan would need to include the minimum required contents, would have been developed using the State DOT's FHWA-certified processes for the necessary analyses, would include the 23 U.S.C. 150 measures and targets, and would contain strategies meeting the requirements in 23 U.S.C. 119(e)(2).
The purpose of FHWA's receipt of the State-approved asset management plan is to make the process certification and consistency determinations required under 23 U.S.C. 119(e)(5)–(6). The FHWA would not take any action to approve or disapprove a plan beyond the required process certification and consistency determinations. The investment decisions and judgments made by State DOTs in their asset management plans are within the scope of the FHWA asset management plan reviews.
The FHWA specifically requests comments on the proposed process certification and consistency determination processes proposed in section 515.013.
This section discusses the statutory penalties for State DOTs that do not develop and implement an asset management plan consistent with the requirements of 23 U.S.C. 119 and this proposed rule. The penalties that the FHWA is proposing in this section are penalties required by law. First, as mentioned above, 23 U.S.C. 119(e)(5)
The FHWA consistency determination under 23 U.S.C. 119(e)(5), and FHWA obligation decisions for NHPP funds, look at two major elements: Plan development and plan implementation. The FHWA proposes to make the determination whether a plan meets the development requirements based on whether the State DOT has complied with sections 515.007 and 515.009 of the proposed rule. The FHWA believes the plan implementation determination should be focused on whether the plan's investment strategies satisfy the 23 U.S.C. 119(e)(2) requirements (
(1) A State DOT could identify the projects in its asset management plan.
(2) A State DOT could identify the projects by using an identifying symbol, such as an asterisk or number, in its STIP.
(3) A State DOT could include a summary discussion in its STIP identifying the projects, or program of projects.
(4) The State DOT could submit a list to FHWA by August 31 of each fiscal year identifying the projects authorized during the fiscal year that the State DOT believes demonstrate the State DOT has met the section 119(e)(2) requirements.
(5) The State DOT could include a summary in its STIP of anticipated funding broken down into categories based on the recommended investment strategies in the asset management plan, with enough detail to guide project selection.
The FHWA requests comments on other possible approaches to determining whether a State DOT has implemented its asset management plan. The FHWA also seeks comments on any problems State DOTs might anticipate in identifying projects that meet the requirements of 23 U.S.C. 119(e)(2), and ideas for resolving any anticipated problems.
This section describes practices that State DOTs are encouraged to consider to support the development and implementation of asset management plans. These practices include the establishment of strategic goals, conducting periodic self-assessments, and conducting a gap analysis to determine which areas of the asset management development and implementation process require improvement.
This proposed regulation fulfills the rulemaking requirement in section 1315(b) of MAP–21 and is consistent with the purpose of that section. Section 1315(b) of MAP–21 requires periodic evaluations to determine if reasonable alternatives exist for roads, highways, or bridges that repeatedly require repair and reconstruction activities due to emergency events. The purposes of section 1315(b) are to conserve Federal resources, protect public safety and health, and reduce the need for Federal funds to be expended on repeated repair and reconstruction activities, better protect the environment, and meet transportation needs. Emergency events include extreme weather events, natural disasters, and other catastrophic events that damage roads, highways, or bridges. Examples include floods, hurricanes, earthquakes, tornadoes, tidal waves, severe storms, or landslides.
The threshold for requiring evaluation under the proposed rule would be whether a road, highway, or bridge has required repair or reconstruction on at least two occasions due to emergency events. The proposed rule would define “emergency event” to mean a natural disaster or catastrophic failure due to external causes resulting in an emergency declared by the Governor of the State or an emergency or disaster declared by the President of the United States.
The proposed rule would apply only to roads, highways, and bridges that are owned by a State or local governmental entity (
Under the proposed rule, the State DOT must complete its evaluation for affected highways and bridges on the NHS, and any other assets included in the State DOT's asset management plan, not later than 2 years after the effective date of the final rule established through this rulemaking. The State DOT would have to complete the evaluation for all other roads, highways, and bridges in the State not later than 4 years after the effective date of the final rule in this rulemaking. The State DOT would be required to update the statewide evaluation after every emergency event to the extent the event caused additional facilities to meet the threshold for an alternatives evaluation. The proposed rule would require the State DOT to
The State DOT would be required by proposed sections 515.019, 515.007, and 515.009 to use the results of the evaluation in its asset management plan to the extent the evaluation covers assets in the plan. The State DOT would include a summary of its section 1315(b) evaluation for pavements and bridges on the NHS, and those for any other assets included in the asset management plan at the option of the State DOT, as part of the risk analysis in its asset management plan.
The FHWA received comments from 12 commenters in response to the
Three commenters, ADOT&PF, Texas DOT, and Transportation Transformation Group suggested the FHWA grant the State flexibility with respect to the frequency of the reviews or how the reviews are conducted. The FHWA is proposing the State DOTs perform the evaluations of NHS highways and bridges, and any other assets included in the State DOT asset management plan, within 2 years after the final rule established through this rulemaking. This is to facilitate consideration of the evaluation in the asset management plan. This schedule also recognizes the priority Congress placed on improving and preserving the NHS in MAP–21. For other roads, highways, and bridges, the State DOT would have to complete the evaluation no later than 4 years after the final rule established through this rulemaking. The FHWA does not specify in this NPRM the manner in which the States must conduct these reviews, only that these reviews must be consistent with the mandate in section 1315(b) of MAP–21. The FHWA expects that each State DOT will keep current data regarding facilities that repeatedly require repair and reconstruction following emergency events. If damage due to emergency events occurs to a road, highway, or bridge on two or more occasions, the State DOT would determine if reasonable alternatives exist to reduce the potential for future damage and repair costs and better protect public safety and health and the environment. These evaluations would consider the risk of recurring damage and the cost of future repair under current and future environmental conditions. For purposes of section 1315(b), a reasonable alternative would meet transportation needs as described in relevant and applicable Federal, State, local and tribal plans, including those required under 23 CFR part 450. The FHWA is proposing this approach to conserve Federal resources and to increase the resilience of the transportation system. The proposed approach would help ensure that future project development and funding decisions for these facilities are informed by these evaluations, and therefore meet the intent of section 1315(b) of MAP–21.
The FHWA received four comments (Texas DOT, New York State Metropolitan Transportation Authority, Transportation Transformation Group, and Southeast Pennsylvania Transportation Authority) stating that these evaluations would best be conducted at the State or local level. The FHWA agrees that these evaluations are best conducted at the State or local level. However, with respect to facilities under the jurisdiction of a local public agency, State DOTs are responsible for ensuring that appropriate evaluations are carried-out for those facilities in their State.
Finally, the FHWA received four comments on the factors to be considered as part of this reasonable alternatives analysis. Two of these comments (Texas DOT and APTA) requested that FHWA allow States to determine the factors. Another comment (Advisory Council on Historic Preservation) requested that the FHWA require States to consider the effects on historic properties. The fourth comment (ADOT&PF) proposed some factors that should be considered when assessing the risk of recurring damage, including the severity of damage, cost of a permanent solution, and the maintenance and operations of the current facility and permanent solution. In this NPRM, the FHWA proposes that States take into account the factors specified in 1315(b) of MAP–21 when evaluating whether reasonable alternatives exist for roads, highways, or bridges that repeatedly require repair and reconstruction activities following emergency events. States would be required to evaluate whether reasonable alternatives exist that: Reduce the need for Federal funds to be expended on such repair and reconstruction activities; better protect public safety and health and the environment; and meet transportation needs as described in relevant and applicable Federal, State, local, and tribal plans. States are free to use other factors at their discretion; however, the statutorily required factors must be taken into account. The FHWA declines to include a specific reference in the regulation to historic properties. The proposed regulation calls for consideration of the human and natural environment in the evaluation. That phrase includes a wide range of potential environmental impacts, including those on historic and cultural resources. Including references to some types of human or natural environmental resources, while omitting references to others, could be misinterpreted as intended to give greater weight to the listed resource(s).
The FHWA recognizes MAP–21 section 1315(b) requirements may pose challenges for some State DOTs. The FHWA requests comments on potential alternative methods for meeting the section 1315(b) requirements, and asks for comments on the following specific questions:
(1) Is the amount of time allotted in proposed section 515.019 for the initial evaluation of NHS assets and other assets included in the State DOT asset management plan (2 years), and for all other roads, highways, and bridges (4 years), appropriate? If not, how much time should be allotted?
(2) Is the 4-year general update cycle for the statewide evaluation appropriate? If not, what would be a reasonable cycle for the ongoing periodic evaluation required under section 1315(b)?
(3) Should the FHWA establish a limit to the length of the “look back” State DOTs will do in order to determine whether a road, highway, or bridge has been repaired or reconstructed on two or more occasions? If so, what would be an appropriate and feasible length of time?
(4) Should the regulation address the types of data sources that should be considered to determine whether a road, highway, or bridge has been repaired or reconstructed on two or more occasions? If so, what types of data sources would be most appropriate?
(5) Should the rule specify required content for the evaluations in greater detail? If so, what elements ought to be required?
(6) Should the regulation require the State to consider the section 1315(b) alternatives evaluation prior to requesting title 23 funding for a project?
(7) Should the regulation address when and how FHWA would consider the section 1315(b) alternatives evaluation in connection with an FHWA project approval?
The FHWA has determined that this action would be a significant regulatory action within the meaning of Executive Order 12866 and within the meaning of DOT's regulatory policies and procedures. This rulemaking implements a congressional mandate that States develop and implement risk-based asset management plans for Interstate highway pavements, non-Interstate NHS highway pavements, and NHS bridges. In addition, State DOTs must meet minimum standards established by the Secretary of Transportation in developing pavement and bridge management systems. This action is considered significant because of the substantial State DOT interest in the requirements for developing risk-based asset management plans, and the proposed minimum standards for the pavement and bridge management systems. In addition, this rulemaking implements section 1315(b) of MAP–21 by requiring States to conduct evaluations to determine if reasonable alternatives exist to roads, highways, or bridges that repeatedly require repair and reconstruction activities from emergency events, and to take these evaluations into account in the asset management plans for facilities that are included in these plans. However, this action is not economically significant within the meaning of Executive Order (EO) 12866.
The FHWA is presenting a Regulatory Impact Analysis (RIA) in support of this NPRM. The RIA estimates the economic impact, in terms of costs and benefits, on State DOTs as required by EO 12866 and EO 13563. This section of the NPRM identifies and estimates costs and benefits resulting from the proposed rule in order to inform policy makers and the public of the relative value of the current proposal. The complete RIA may be accessed in the rulemaking's docket (FHWA–2013–0052).
The costs and benefits were estimated for implementing the requirement for States to develop a risk-based asset management plan and to use pavement and bridge management systems that comply with the minimum standards proposed by this NPRM. For this analysis, the base case is assumed to be the current state of the practice, where most State DOTs already own pavement and bridge management systems, but have not developed risk-based asset management plans.
The costs of preparing an asset management plan was estimated based on information obtained from nine State DOTs. Based on that information, FHWA estimates that the total cost of developing the initial plan and three updates for all 50 States, the District of Columbia, and Puerto Rico States, covering a 12 year time period, would be $37.3 million discounted at 3 percent and $31.1 million discounted at 7 percent, an annual cost of $3.1 million and $2.6 million respectively. These estimates may be conservative, since many agencies may already be developing planning documents that could feed into the asset management plans or be replaced by them, therefore saving some costs to the agencies.
An additional cost of $4 million to $6 million in total is estimated for acquiring pavement management systems for all non-complying agencies. There are currently four States that don't currently have pavement and bridge management systems that meet the standards of the proposed rule.
Therefore, the total nationwide costs for all States to develop their initial asset management plans with three updates over the course of 12 years and for the four States to acquire and install pavement management systems would be $43.2 million discounted at 3 percent and $36.7 million discounted at 7 percent.
The FHWA lacks data on the economic benefits of the practice of asset management as a whole. The field of asset management has only become common in the past decade and case studies of economic benefits from overall asset management have not been published. We specifically request that commenters submit data on the quantitative benefits of asset management and reference any studies focusing on the economic benefits of overall asset management.
While FHWA lacks data on the overall benefits of asset management, there are examples of the economic savings that result from the most typical component sub-sets of asset management, pavement and bridge management systems. Pavement and bridge management systems are software and analysis tools whereas asset management is a decisionmaking framework and approach leading to cost effective investment strategies. Pavement and bridge management systems are used to analyze massive amounts of pavement and bridge data. The information from the pavement and bridge management systems is then used to develop the asset management plan.
Taking a study conducted using Iowa DOT data
Based on the benefits derived from the Iowa DOT study and the estimated costs of asset management plans and acquiring pavement management systems, the ratio of benefits to costs would be 10.5 at a 3 percent discount rate and 9.3 at a 7 percent discount rate. The estimated benefits do not include the potential benefits resulting from savings in bridge programs. The benefits for States already practicing good asset management decisionmaking using their pavement management systems will be
To estimate the threshold benefits necessary from pavement or bridge preservation for the rule to be worthwhile, we use the incremental benefits that can be realized by road users in vehicle operating cost reductions due to improvements in pavement or bridge condition. The estimates used for the user costs in the break-even analysis are based on the numbers derived for the “Establishment of National Bridge and Pavement Condition Performance Management Measures Regulatory Impact Analysis.” (See Docket Number FHWA–2013–0053). The FHWA estimated the cost saving per mile of travel on pavement with fair condition versus pavement in poor condition to be $0.01 per vehicle, averaged for the share of trucks and cars on the NHS. Dividing the cost of the rule by this cost, the number of vehicle miles of travel (VMT) to be improved to cover the cost of the rule was estimated. Then taking the ratio of the VMT to be improved to the number of VMT in poor condition and multiplying by number of NHS miles in poor condition, the number of lane miles to be improved to cover the cost of the rule are estimated. To cover the $49.9 million undiscounted cost of the rule, approximately 127 lane miles would have to be improved from poor condition to fair condition to generate user benefits to make the rule worthwhile.
For bridges, FHWA estimated the additional user cost (travel time and vehicle operating costs) of a detour due to a weight restricted bridge. According to NBI, the average detour is equal to 20 miles. The estimated average user cost per truck is $1.69 per mile. Each posted bridge is estimated to impose a detour cost of $33.82 per truck. ($1.69 per VMT × 20 miles). Based on the number of trucks affected by the weight restrictions, it is estimated that two weight restricted bridge postings would have to be avoided to meet the cost of the rule.
The above description of the benefits of asset management is based on the limited data available on the benefits of pavement and bridge management systems, the most typical component sub-sets of asset management. The FHWA does not have sufficient information to estimate total costs and benefits of asset management as a whole. We specifically request that commenters submit information on the quantitative benefits of asset management.
A copy of the FHWA's RIA has been placed in the docket. The FHWA requests comments on the RIA that has been conducted for this rule.
In compliance with the Regulatory Flexibility Act (Pub. L. 96–354, 5 U.S.C. 601–612), the FHWA has evaluated the effects of this action on small entities and has determined that the action would not have a significant economic impact on a substantial number of small entities. The proposed amendment addresses the obligation of Federal funds to States for Federal-aid highway projects. As such, it affects only States, and States are not included in the definition of small entity set forth in 5 U.S.C. 601. Therefore, the Regulatory Flexibility Act does not apply, and the FHWA certifies that the proposed action would not have a significant economic impact on a substantial number of small entities.
This proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4, 109 Stat. 48, March 22, 1995) as it would not result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $151 million or more in any one year (2 U.S.C. 1532).
The FHWA has analyzed this NPRM in accordance with the principles and criteria contained in EO 13132. The FHWA has determined that this action would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA has also determined that this action would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.
The regulations implementing EO 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program. Local entities should refer to the Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction, for further information.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501,
In order to be responsive to the requirements of MAP–21, FHWA proposes that State DOTs submit their asset management plans, including the processes used to develop these plans, to FHWA for: (1) Certification of the processes, and (2) a determination that the asset management plans have been developed consistent with the certified processes; however, these plans are not subject to the FHWA approval.
A description of the collection requirements, the respondents, and an estimate of the burden hours per data collection cycle are set forth below:
The FHWA invites interested persons to submit comments on any aspect of the proposed information collection, including the FHWA's estimate of the burden hours of the proposed information collection. Comments submitted in response to this notice will be summarized or included, or both, in the request for OMB approval of this information collection.
Agencies are required to adopt implementing procedures under the National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
The FHWA has analyzed this proposed rule under EO 12630,
This action meets applicable standards in sections 3(a) and 3(b)(2) of EO 12988,
The EO 12898,
The FHWA has evaluated this proposed rule under the EO, the DOT Order, and the FHWA Order. This rule proposes the process under which States would develop and implement asset management plans, which is a document describing how the highway network system will be managed, in a financially responsible manner, to achieve a desired level of performance and condition while managing risks over the life cycle of the assets. The asset management plan does not lead directly to construction. Therefore, the FHWA has determined that the proposed asset management regulations, if finalized, would not cause disproportionately high and adverse human health and environmental effects on minority or low-income populations.
We have analyzed this rule under EO 13045,
The FHWA has analyzed this action under EO 13175,
The FHWA has analyzed this action under EO 13211,
An RIN is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.
Asset management, Transportation, Highways and roads.
In consideration of the foregoing, the FHWA proposes to revise title 23, Code of Federal Regulations, by adding a new part 515 to read as follows:
Sec. 1106, 1203, and 1315(b) of Pub. L. 112–141, 126 Stat. 405; 23 U.S.C. 109, 119(e), 144, 150(c), and 315; 49 CFR 1.85(a).
The purpose of this part is to:
(a) Establish the processes that a State transportation department (State DOT) must use to develop its asset management plan, as required under 23 U.S.C. 119(e)(8);
(b) Establish the minimum requirements that apply to the development of an asset management plan;
(c) set forth the minimum standards for a State DOT to use in developing and operating highway bridge and pavement management systems under 23 U.S.C. 150(c)(3)(A)(i);
(d) Describe the penalties for a State DOT's failure to develop and implement an asset management plan in accordance with 23 U.S.C. 119 and this part; and
(e) Establish the requirement for State DOTs to conduct periodic evaluations to determine if reasonable alternatives exist to roads, highways, or bridges that repeatedly require repair and reconstruction activities from emergency events.
This part applies to all State DOTs.
As used in this part:
(a) A State shall develop a risk-based asset management plan that describes how the highway network system, including the NHS, will be managed to achieve a desired level of condition and performance while managing the risks, in a financially responsible manner, at a minimum practicable cost over the life cycle of its assets. The State DOT shall develop and use, at a minimum the following processes to prepare its asset management plan:
(1) A State DOT shall establish a process for conducting performance gap analysis to identify deficiencies hindering progress toward improving and preserving the NHS and achieving and sustaining the desired state of good repair. At a minimum, the State DOT
(i) The performance targets for the condition of Interstate highway pavements, non-Interstate NHS highway pavements, and NHS bridges as established by the State DOT under 23 U.S.C. 150(d) once promulgated. If a State DOT decides to include other public roads in the asset management plan, then the desired performance targets for those public roads shall be included as well;
(ii) The gaps, if any, in the effectiveness of the NHS in providing for the safe and efficient movement of people and goods where it can be affected by physical assets;
(iii) The gaps, if any, between the existing condition of the assets, asset classes, or asset sub-groups and the State DOT's performance targets; and
(iv) Alternative strategies to close or address the identified gaps.
(2) A State DOT shall establish a process for conducting life-cycle cost analysis for an asset class (
(i) Desired condition for each asset class or asset sub-group;
(ii) Identification of deterioration models for each asset class or asset sub-group;
(iii) Potential work types, including the treatment options for the work types, across the whole life of each asset class or asset sub-group with their relative unit cost; and
(iv) A strategy for managing each asset class or asset sub-group by minimizing its life-cycle costs, while achieving the performance targets set by the State DOT for the condition of Interstate highway pavements, non-Interstate NHS highway pavements, and NHS bridges under 23 U.S.C. 150(d).
(3) A State DOT shall establish a process for developing a risk management plan.
This process shall, at a minimum, produce the following information:
(i) Identification of risks that can affect the NHS condition and effectiveness as they relate to the safe and efficient movement of people and goods, including risks associated with current and future environmental conditions, such as extreme weather events, climate change, seismic activity, and risks related to recurring damage and costs as identified through the evaluation carried out under § 515.019;
(ii) An assessment of the identified risks to assets and the highway system included in the plan in terms of the likelihood of their occurrence and their impact and consequence if they do occur;
(iii) An evaluation and prioritization of the identified risks;
(iv) A mitigation plan for addressing the top priority risks;
(v) An approach for monitoring the top priority risks; and
(vi) A summary of the evaluations carried out under § 515.019 that discusses, as a minimum, the results relating to the State's existing pavements and bridges on the NHS, and any other pavement or bridge included in the asset management plan at the option of the State DOT.
(4) A State DOT shall establish a process for the development of a financial plan that identifies annual costs over a minimum period of 10 years. The financial plan shall, at a minimum, include:
(i) The estimated cost of expected future work to implement investment strategies contained in the asset management plan, by State fiscal year and work type;
(ii) The estimated funding levels that are expected to be reasonably available, by fiscal year, to address the costs of future work types. State DOTs may estimate the amount of available funding using historical values where the future funding amount is uncertain;
(iii) Identification of anticipated funding sources; and
(iv) An estimate of the value of the agency's pavements and bridge assets and the needed investment on an annual basis to maintain the value of these assets.
(5) A State DOT shall establish a process for developing investment strategies meeting the requirements in § 515.009(f). This process must describe how the investment strategies are influenced, at a minimum, by the following:
(i) Performance gap analysis required under paragraph (a)(1) of this section;
(ii) Life-cycle cost analysis for asset classes or asset sub-groups resulting from the process required under paragraph (a)(2) of this section;
(iii) Risk management analysis resulting from the process required under paragraph (a)(3) of this section; and
(iv) Anticipated available funding and estimated cost of expected future work types associated with various candidate strategies based on the financial plan required by paragraph (a)(4) of this section.
(b) Each State DOT shall use bridge and pavement management systems to analyze the condition of Interstate highway pavements, non-Interstate NHS pavements, and NHS bridges in accordance with 23 U.S.C. 150(c)(3)(A)(i), for the purpose of developing and implementing the asset management plan required under this part. These bridge and pavement management systems shall include, at a minimum, formal procedures for:
(1) Collecting, processing, storing, and updating inventory and condition data for all NHS bridge and pavement assets;
(2) Forecasting deterioration for all NHS bridge and pavement assets;
(3) Determining the life-cycle benefit-cost analysis of alternative strategies (including a no action decision) for managing the condition of all NHS bridge and pavement assets;
(4) Identifying short- and long-term budget needs for managing the condition of all NHS bridge and pavement assets;
(5) Determining the optimal strategies for identifying potential projects for managing pavements and bridges; and
(6) Recommending programs and implementation schedules to manage the condition of all Interstate highway pavements, non-Interstate NHS highway pavements, and NHS bridge assets within policy and budget constraints.
(c) The head of the State DOT shall approve the asset management plan.
(a) A State DOT shall develop and implement an asset management plan to improve or preserve the condition of the assets and improve the performance of the NHS in accordance with the requirements of this part. If the State DOT elects to include other public roads in its plan, all asset management process and plan requirements in this part shall apply. Asset management
(b) An asset management plan shall include, at a minimum, a summary listing of each of the following assets, regardless of ownership:
(1) Pavements on the Interstate System;
(2) Pavements on the NHS (excluding the Interstate System); and
(3) Bridges on the NHS.
(c) In addition to the assets specified in paragraph (b) of this section, State DOTs are encouraged, but not required, to include all other NHS infrastructure assets within the right-of-way corridor. Examples of other assets include tunnels, ancillary structures, and signs. If a State DOT decides to include other such assets on the NHS in its asset management plan, or to include assets on other public roads, the State DOT shall evaluate and manage those assets consistent with the provisions of this part.
(d) The minimum content for an asset management plan under this part includes a discussion of each element in this paragraph (d).
(1) Asset management objectives. The objectives should align with the agency's mission. The objectives must be consistent with the purpose of asset management, which is to achieve and sustain the desired state of good repair over the life cycle of the assets at a minimum practicable cost.
(2) Asset management measures and targets, including those established pursuant to 23 U.S.C. 150 for pavements and bridges on the NHS. The plan must include measures and associated targets the State DOT can use in assessing the condition of the assets and performance of the highway system as it relates to those assets. The measures and targets must be consistent with the objective of achieving and sustaining the desired state of good repair. The State DOT must include the measures established under 23 U.S.C. 150(c)(3)(A)(ii)(I)–(III), once promulgated in 23 CFR part 490, for the condition of pavements on the Interstate System, the condition of pavements on the NHS (excluding the Interstate), and the condition of bridges on the NHS. The State DOT also must include the targets the State DOT has established for the measures required by 23 U.S.C. 150(c)(3)(A)(ii)(I)–(III), once promulgated, and report on such targets in accordance with 23 CFR part 490. The State DOT's process may permit the inclusion of measures and targets for the NHS that the State DOT established through pre-existing management efforts or develops through new efforts if the State DOT wishes to use such additional measures and targets to supplement information derived from the measures and targets required under 23 U.S.C. 150.
(3) A summary listing of the Interstate pavement assets, non-Interstate NHS pavement assets, and NHS bridge assets, including a description of the condition of those assets, regardless of ownership of the pavement and bridge assets. The summary listing must include a description of the condition of those assets based on the performance measures established under 23 U.S.C. 150(c)(3)(A)(ii) for condition, once promulgated. If a State DOT decides to include other public roads in the asset management plan, the State DOT should include a summary listing of these assets as well, including a description of the condition of those assets. Where applicable, the description of condition should be informed by the evaluation required under § 515.019. The processes established by State DOTs shall include a provision for the State DOT to obtain necessary data from other NHS owners in a collaborative and coordinated effort
(4) Performance gap identification.
(5) Life-cycle cost analysis.
(6) Risk management analysis, including the results of the periodic evaluations under § 515.019 for assets included in the plan.
(7) Financial plan.
(8) Investment strategies.
(e) An asset management plan shall cover, at a minimum, a 10-year period.
(f) An asset management plan shall establish and discuss a set of investment strategies leading to a program of projects that would
(1) Achieve and sustain a desired state of good repair over the life cycle of the assets,
(2) Improve or preserve the condition of the assets and the performance of the NHS relating to physical assets,
(3) Make progress toward achievement of the State targets for asset condition and performance of the NHS in accordance with 23 U.S.C. 150(d), and
(4) Support progress toward the achievement of the national goals identified in 23 U.S.C. 150(b).
(g) A State DOT must include in its plan a description of how the analyses required under § 515.007 support the State DOT's strategies. The plan also must describe how the strategies satisfy the requirements in paragraph (f)(1) through (4) of this section.
(h) A State DOT should select such projects for inclusion in the STIP to support its efforts to achieve the goals in paragraphs (f)(1) through (4) of this section.
(i) A State DOT is required to make its asset management plan available to the public, and is encouraged to do so in a format that is easily accessible.
(j) Inclusion of performance measures and State DOT targets established pursuant to 23 U.S.C. 150 in the asset management plan does not relieve the State DOT of any performance management requirements, including 23 U.S.C. 150(e) reporting, established in other parts of this title.
(a) A State DOT may choose a phase-in option for the development of its initial asset management plan, which must be submitted to FHWA by [date 1 year after effective date of final rule] as provided in § 515.013(a). A State DOT may elect to submit its initial plan by following the requirements in this section.
(b) The initial plan shall describe the State DOT's processes for developing its risk-based asset management plan, including the policies, procedures, documentation, and implementation approach that satisfy the requirements of this part. The plan also must contain measures and targets for assets covered by the plan. For other parts of the initial plan, the State DOT shall use the best available information to meet the requirements of §§ 515.007 and 515.009. The investment strategies required by § 515.007(a)(8) must support progress toward the achievement of the national goals identified in 23 U.S.C. 150(b), but are not required to address the State's 23 U.S.C. 150(d) targets for asset condition and performance of the NHS unless the State DOT has established those targets at least 6 months before the plan submission deadline in § 515.013(a). The initial asset management plan may exclude one or more of the necessary analyses with respect to the following required asset management processes:
(1) Life-cycle cost analysis required under § 515.007(a)(5);
(2) The risk management analysis required under § 515.007(a)(6); and
(3) Financial plan under § 515.007(a)(7).
(c) Not later than 18 months after the effective date of the final rulemaking for pavement and bridge condition measures pursuant to 23 U.S.C. 150, a State DOT that used the phase-in option under this section for its initial plan submission shall amend its asset management plan to include analyses performed using FHWA-certified processes and the section 150 measures and State DOT targets for pavements and bridges on the NHS. The FHWA may extend the 18-month time period as
(a)
(b)
(1) If FHWA determines that the processes used by a State DOT to develop and maintain the asset management plan do not meet the requirements established under this part, FHWA will send the State DOT a written notice of the denial of certification or recertification, including a listing of the specific requirement deficiencies.
(2) Upon receiving a notice of denial of certification or recertification, the State DOT shall have 90 days from receipt of the notice to address the requirement deficiencies identified in the notice and resubmit the State DOT's processes to FHWA for review and certification.
(3) The FHWA may extend the State DOT's 90-day period to cure deficiencies upon request.
(4) If FHWA finds that a State DOT's asset management processes substantially meet the requirements of this part except for minor deficiencies, FHWA may certify or recertify the State DOT's processes as being in compliance, but the State DOT must take actions to correct the minor deficiencies within 90 days of receipt of the notification of certification. The FHWA may extend this 90-day period upon request of the State DOT. The State shall notify FHWA, in writing, when corrective actions are completed.
(c)
(d)
(a) Beginning with the second fiscal year after [effective date of final rule] and in each fiscal year thereafter, if a State DOT has not developed and implemented an asset management plan consistent with the requirements of 23 U.S.C. 119 and this part, the maximum Federal share for National Highway Performance Program projects shall be reduced to 65 percent for that fiscal year.
(b)(1) Except as provided in paragraph (b)(2) of this section, if the State DOT has not developed and implemented an asset management plan that is consistent with the requirements of 23 U.S.C. 119 and this part and established the performance targets required under 23 U.S.C. 150(d) regarding the condition and performance of the NHS by the date that is 18 months after the effective date of the final rule required under 23 U.S.C. 150(c), the FHWA will not approve any further projects using National Highway Performance Program funds.
(2) The FHWA may extend the 18-month period if FHWA determines that the State DOT has made a good faith effort to develop and implement an asset management plan and establish the required performance targets.
(a) The purpose of this section is to describe how a State DOT may integrate asset management into its organizational mission, culture and capabilities at all levels.
(b) A State DOT should establish organizational strategic goals and include the goals in its organizational strategic implementation plans with an explanation as to how asset management will help it to achieve those goals.
(c) A State DOT should conduct a periodic self-assessment of the agency's capabilities to conduct asset management, as well as its current efforts in implementing an asset management plan. The self-assessment should consider, at a minimum, the adequacy of the State DOT's strategic goals and policies with respect to asset management, whether asset management is considered in the agency's planning and programming of resources, including development of the STIP; whether the agency is implementing appropriate program delivery processes, such as consideration of alternative project delivery mechanisms, effective program management, and cost tracking and estimating; and whether the agency is implementing adequate data collection and analysis policies to support an effective asset management program.
(d) Based on the results of the self-assessment, the State DOT should conduct a gap analysis to determine which areas of its asset management process require improvement. In conducting a gap analysis, the State DOT should:
(1) Determine the level of organizational performance effort needed to achieve the objectives of asset management;
(2) Determine the performance gaps between the existing level of performance effort and the needed level of performance effort; and
(3) Develop strategies to close the identified organizational performance gaps and define the period of time over which the gap is to be closed.
(a) A State DOT shall conduct a statewide evaluation of the State's existing roads, highways, and bridges eligible for funding under title 23, United States Code, that have required repair and reconstruction activities on two or more occasions due to emergency events, to determine if there are reasonable alternatives to any of these roads, highways, and bridges. The evaluation shall consider the risk of recurring damage and cost of future repair under current and future environmental conditions. For purposes of this section, “emergency event” means a natural disaster or catastrophic failure due to external causes resulting in an emergency declared by the Governor of the State or an emergency or disaster declared by the President of the United States.
(b) For purposes of this section, reasonable alternatives include work types that could achieve the following:
(1) Reduce the need for Federal funds to be expended on emergency repair and reconstruction activities;
(2) Better protect public safety and health and the human and natural environment; and
(3) Meet transportation needs as described in the relevant and applicable Federal, State, local, and tribal plans and programs. Relevant and applicable plans and programs include the Long-Range Statewide Transportation Plan, STIP, Metropolitan Transportation Plan, and Transportation Improvement Program that are developed under part 450 of this title.
(c) Not later than [date 2 years after effective date of final rule], the State DOT must complete the evaluation for NHS highways and bridges and any other assets included in the State DOT's asset management plan. The State DOT must complete the evaluation for all other roads, highways, and bridges meeting the criteria for evaluation not later than [date 4 years after effective date of final rule], excluding federally-owned facilities. The State DOT shall update the evaluation after every emergency event to the extent needed to include facilities affected by the event. The State will review and update the evaluation at least every four years after the initial evaluation. In establishing its evaluation cycle, the State DOT should consider how the evaluation can best inform the State DOT's preparation of its asset management plan and STIP.
(d) The State DOT shall include in its asset management plan developed pursuant to §§ 515.007 and 515.009, a summary of the evaluation for any roads, highways, and bridges included in the asset management plan. The results of the evaluation of those assets, including any update following an emergency event, shall be addressed in the asset management plan's risk analysis as provided in § 515.007(a)(6).
(e) The State DOT must make the evaluation available to the FHWA upon request.
Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Proposed rule.
This proposed rule is a cost-savings measure to update HUD's regulations regarding the payment of FHA insurance claims in debentures. Section 520(a) of the National Housing Act affords the Secretary discretion to pay insurance claims in cash or debentures. Although HUD has given mortgagees the option to elect payment of FHA insurance claims in debentures in some sections of HUD's regulations, HUD has not paid an FHA insurance claim under these regulations using debentures in approximately 5 years. This proposed rule would amend applicable FHA regulations to bring consistency in determining the method of payment for FHA insurance claims.
Interested persons are invited to submit comments regarding this proposed rule to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410–0500. Communications must refer to the above docket number and title. There are two methods for submitting public comments. All submissions must refer to the above docket number and title.
1. Submission of Comments by Mail. Comments may be submitted by mail to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410–0500.
2. Electronic Submission of Comments. Interested persons may submit comments electronically through the Federal eRulemaking Portal at
To receive consideration as public comments, comments must be submitted through one of the two methods specified above. Again, all submissions must refer to the docket number and title of the rule.
Public Inspection of Public Comments. HUD will make all properly submitted comments and communications available for public inspection and copying between 8 a.m. and 5 p.m. weekdays at the above address. Due to security measures at the HUD Headquarters building, you must schedule an appointment in advance to review the public comments by calling the Regulations Division at 202–708–3055 (this is not a toll-free number). Individuals with speech or hearing impairments may access this number via TTY by calling the toll-free Federal Relay Service at 800–877–8339. Copies of all comments submitted are available for inspection and downloading at
For information about: HUD's Single Family Housing program, contact Ivery Himes, Director, Office of Single Family Asset Management, Office of Housing, Department of Housing and Urban
Prior to the Housing and Urban Development Act of 1965, the Secretary was required to pay insurance claims on mortgages or loans insured under the National Housing Act in debentures. Section 215 of the Housing and Urban Development Act of 1965 amended Title V of the National Housing Act to add a new section which authorized the Secretary, in his discretion, to pay insurance claims on mortgages or loans insured under any section of the National Housing Act in cash or debentures.
In some of FHA's regulations in 24 CFR, subtitle B, chapter II, HUD has discretionarily provided mortgagees with the ability to request and receive payment of an insurance claim on a loan insured under the National Housing Act in debentures. As a result of these regulations, HUD has needed to maintain an interagency agreement with Treasury, which is the agency responsible for issuing and servicing debentures, costing HUD over $206,000 per year, despite the fact that there are no current debentures being serviced by Treasury for HUD, and HUD has not paid an FHA insurance claim in debentures in approximately 5 years.
HUD proposes to use the authority provided in section 520(a) of the National Housing Act to reflect the Secretary's discretion to pay FHA insurance claims in cash or debentures. This change will enable HUD, in the future, to make a fiscally responsible decision about maintaining the costly interagency agreement with Treasury.
This rule proposes to amend the following sections to bring consistency in the payment of FHA insurance claims among FHA programs: §§ 203.400, 203.476, 203.478, 207.259, 220.751, 220.822, 221.762, 232.885, 235.215, 236.265, 241.261, 241.885 and 241.1205. As a result of these changes, § 220.760 will be eliminated because it will be unnecessary.
Executive Order 13563 (Improving Regulations and Regulatory Review) directs executive agencies to analyze regulations that are “outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned.” Executive Order 13563 also directs that, where relevant, feasible, and consistent with regulatory objectives, and to the extent permitted by law, agencies are to identify and consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public.
The broader purposes of the reform to FHA's regulations regarding Secretarial discretion of the type of FHA insurance claim payment are to eliminate unnecessary spending and bring consistency regarding the payment of insurance claims across all FHA programs. As discussed in the preamble, the interagency agreement with Treasury costs HUD over $206,000 per year, even though HUD currently does not have any debentures for payment of FHA insurance claims in circulation, and has not made a payment in debentures in approximately 5 years for these insurance claims. In addition, different FHA programs treat payment of FHA insurance claims differently, and this proposed rule will simplify the regulations so that the authority to determine the method of claim payment always rests with the Secretary.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Accordingly, the undersigned certifies that this rule will not have a significant economic impact on a substantial number of small entities. Notwithstanding HUD's determination that this rule will not have a significant effect on a substantial number of small entities, HUD specifically invites comments regarding any less burdensome alternatives to this rule that will meet HUD's objectives as described in the preamble to this rule.
The proposed rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate, real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction, or establish, revise or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this proposed rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any rule that has federalism implications if the rule either (i) imposes substantial direct compliance costs on state and local governments and is not required by statute, or (ii) preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the Executive order. This proposed rule would not have federalism implications and would not impose substantial direct compliance costs on state and local governments or preempt state law within the meaning of the Executive order.
Title II of the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531–1538) (UMRA) establishes requirements for Federal agencies to assess the effects of their regulatory actions on state, local, and tribal governments, and on the private sector. This proposed rule would not impose any Federal mandates on any state, local, or tribal governments, or on the private sector, within the meaning of the UMRA.
The Catalog of Federal Domestic Assistance number for Mortgage Insurance-Housing in Older, Declining Areas is 14.123; Mortgage Insurance-
This proposed rule reduces information collection requirements already submitted to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). In accordance with the Paperwork Reduction Act, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection displays a currently valid OMB control number.
Hawaiian Natives, Home improvement, Indians-lands, Loan programs-housing and community development; Mortgage insurance; Reporting and recordkeeping requirements; Solar energy.
Manufactured homes, Mortgage insurance, Reporting and recordkeeping requirements, Solar energy.
Home improvement, Loan programs-housing and community development, Mortgage insurance, Reporting and recordkeeping requirements, Urban renewal.
Low and moderate income housing, Mortgage insurance, Reporting and recordkeeping requirements.
Fire prevention, Health facilities, Loan programs-health, Loan programs-housing and community development, Mortgage insurance, Nursing homes, Reporting and recordkeeping requirements.
Condominiums, Cooperatives, Grant programs-housing and community development, Low and moderate income housing, Mortgage insurance, Reporting and recordkeeping requirements.
Grant programs-housing and community development, Low and moderate income housing, Mortgage insurance, Rent subsidies, Reporting and recordkeeping requirements.
Home improvement, Loan programs-housing and community development, Mortgage insurance, Reporting and recordkeeping requirements, Solar energy.
Accordingly, for the reasons stated above, HUD proposes to amend 24 CFR parts 203, 207, 220, 221, 232, 235, 236, and 241 as follows:
12 U.S.C. 1709, 1710, 1715b, 1715z–16, 1715u, 1717z–21 and 1735d; 15 U.S.C. 1639c; 42 U.S.C. 3535(d).
(a) If the application for insurance benefits is acceptable to the Commissioner, payment of the insurance claim shall be made in cash, in debentures, or in a combination of both, as determined by the Commissioner either at, or prior to, the time of payment.
(b) An insurance claim paid on a mortgage insured under section 223(e) of the National Housing Act shall be paid in cash from the Special Risk Insurance Fund.
(g) All property of the borrower held by the lender or to which it is entitled and, if the Commissioner elects to make payments in debentures, all cash held by the lender or to which it is entitled, including deposits made for the account of the borrower and which have not been applied in reduction of the principal loan indebtedness;
(c)
12 U.S.C. 1701z–11(e), 1709(c)(1), 1713, 1715(b) and 1735d; 42 U.S.C. 3535(d).
(a)
(2) An insurance claim paid on a mortgage insured under section 223(e) of the National Housing Act shall be paid in cash from the Special Risk Insurance Fund.
12 U.S.C. 1713, 1715b, 1715k and 1735d; 42 U.S.C. 3535(d).
(a) All of the provisions of subpart B, part 207 of this chapter, covering mortgages insured under section 207 of the National Housing Act, apply with full force and effect to multifamily project mortgages insured under section 220 of the National Housing Act, except § 207.256b Modification of mortgage terms.
12 U.S.C. 1715b, 1715l and 1735d; 42 U.S.C. 3535(d).
12 U.S.C. 1715b, 1715w, 1735d and 1735f–19; 42 U.S.C. 3535(d).
(a)
12 U.S.C. 1715b, 1715z and 1735d; 42 U.S.C. 3535(d).
If the application for insurance benefits is acceptable to the Secretary, the insurance claim shall be paid in cash, in debentures, or in a combination of both, as determined by the Commissioner either at, or prior to, the time of payment.
12 U.S.C. 1715b, 1715z–1 and 1735d; 42 U.S.C. 3535(d).
12 U.S.C. 1715b, 1715z–6 and 1735d; 42 U.S.C. 3535(d).
All of the provisions of § 207.259 of this chapter relating to insurance benefits shall apply to multifamily loans insured under this subpart.
(a)
All the provisions of § 207.259 of this chapter relating to insurance benefits shall apply to an equity or acquisition loan insured under subpart F of this part.
Office of Surface Mining Reclamation and Enforcement, Interior.
Decision on petition for rulemaking.
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE or OSM), are announcing our final decision on a petition for rulemaking that was submitted by WildEarth Guardians. The petition requested that we revise our current regulations to prohibit visible nitrogen oxide clouds during blasting. The Director has decided to grant the petition in principle, and although we do not intend to propose the specific rule changes requested in the petition, will instead initiate a rulemaking to address this issue as discussed more fully below.
February 20, 2015.
Copies of the petition and other relevant materials comprising the administrative record of this petition are available for public review and copying at the Office of Surface Mining Reclamation and Enforcement, Administrative Record, Room 252 SIB, 1951 Constitution Avenue NW., Washington, DC 20240.
Joshua Rockwell, Division of Regulatory Support, 1951 Constitution Ave. NW., Washington, DC 20240; Telephone: 202–208–2633; Email:
On April 18, 2014, we received a petition from WildEarth Guardians (petitioner) requesting that OSMRE promulgate rules to prohibit the production of visible nitrogen oxides (NO
In accordance with our regulation at 30 CFR 700.12(c), we determined that WildEarth Guardians' petition set forth “facts, technical justification and law” establishing a “reasonable basis” for amending our regulations. Therefore, on
After reviewing the petition and public comments, the Director has decided to grant WildEarth Guardians' petition. Pursuant to 5 U.S.C. 553(e) and section 201(c)(2) of SMCRA, 30 U.S.C. 1211(c)(2), we plan to initiate rulemaking and publish a notice of proposed rulemaking with an appropriate public comment period. Although we are still considering the content of the proposed rule, we expect that it will contain clarifications to our regulations to ensure that operators and surface coal mining regulatory authorities protect people and property from toxic gases and fumes generated by blasting at surface mine sites. However, OSMRE does not intend to propose the petitioner's suggested rule language because the petitioner's language focused solely on nitrogen oxide emissions, instead of all blast-generated fumes and toxic gases.
WildEarth Guardians' petition states: “Too often, blasting at coal mines leads to the production of dangerous levels of nitrogen dioxide emissions, which are seen as orange to red clouds. These clouds of toxic gas represent significant threats to public health and welfare and must be curtailed to prevent injuries to persons as required by SMCRA.” The petition requests that OSMRE amend our regulations at 30 CFR 816.67 (surface mining) and 817.67 (underground mining) to prohibit visible NO
In support of its petition, petitioner cites SMCRA section 102(a), 30 U.S.C. 1202(a), which lists one of SMCRA's goals as “protect[ing] society and the environment from the adverse effects of surface coal mining operations,” as well as SMCRA section 515(b)(15)(C)(i)–(ii), 30 U.S.C. 1265(b)(15)(C)(i)–(ii), which states that blasting activities should be limited in order to “prevent injury to persons. . . and damage to public and private property outside the permit area.”
The petitioner asserts that revisions to our existing regulations are necessary to close a gap with regard to regulation of NO
The petitioner suggested that we revise 30 CFR 816.67 and 817.67 by adding a new paragraph (f) to read:
Our current regulations at 30 CFR 816.67 and 817.67 establish a framework for addressing the adverse effects associated with the use of explosives. Paragraph (a) of both sections mirrors the language in SMCRA section 515(b)(15)(C)(i)–(ii), 30 U.S.C. 1265(b)(15)(C)(i)–(ii). It states that blasting shall be conducted to prevent injury to persons, damage to public or private property outside the permit area. The remaining paragraphs in 30 CFR 816.67 and 817.67 contain specific performance standards for airblast, flyrock, and ground vibration.
In addition, our regulation 30 CFR 843.11(a)(1)(i) requires that an inspector order the cessation of any surface coal mining and reclamation operations if an imminent danger to the health or safety of the public exists.
We received 119 comments on the petition for rulemaking. These comments can be divided into two major groups: Those in favor of the rulemaking (over two-thirds) and those opposed (less than one-third). The comments in favor of the petition generally came from citizens and groups that seek to protect the public and environment. In contrast, those comments opposed generally came from citizens, state regulatory authorities, and organizations related to the explosives, manufacturing, and mining industries.
Those in support of the petition were primarily concerned that our current regulations do not provide for adequate protection from fumes generated by blasting, including, but not limited to, NO
The comments received from those opposed to the rulemaking expressed concern that the petitioner's suggested rule language would create, “an unlawful, unnecessary, and unattainable emissions standard under OSMRE's federal regulatory program” that would effectively prevent operators from coal mining altogether. Several of the comments opposing the petition referred to
After reviewing the petition and supporting materials, and after careful consideration of all comments received, the Director has decided to grant the petition. However, we do not plan to propose adoption of the specific regulatory changes suggested by the petitioner. Instead, we intend to propose regulatory changes to ensure that operators and regulatory authorities prevent injury to people and damage to property from any harm that could result from
It is undisputed that when blasting is not properly conducted, it can cause damage to property and injury to people. Despite this fact, during our evaluation of the petition and the comments, we discovered that there is a difference in how the state regulatory
We believe that revisions to our regulations, such as those described above, will better (1) ensure a level playing field as described in section 101(g) of SMCRA, 30 U.S.C. 1201(g), which specifies that national standards are essential in order to ensure “that competition in interstate commerce among sellers of coal produced in different States will not be used to undermine the ability of the several States to improve and maintain adequate standards on coal mining operations within their borders;” and, most importantly, (2) prevent harm to people and property from blasting associated with surface coal mining operations.
This notice is not a proposed or final rule, policy, or guidance. Therefore, it is not subject to the Regulatory Flexibility Act, the Small Business Regulatory Enforcement Fairness Act, the Paperwork Reduction Act, the Unfunded Mandates Reform Act, or Executive Orders 12866, 13563, 12630, 13132, 12988, 13175, and 13211. We will conduct the analyses required by these laws and executive orders when we develop a proposed rule.
In developing this notice, we did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106–554, section 15).
This notice is not subject to the requirement to prepare an Environmental Assessment or Environmental Impact Statement under the National Environmental Policy Act (NEPA), 42 U.S.C. 4332(2)(C), because no proposed action, as described in 40 CFR 1508.18(a) and (b), yet exists. This notice only announces the Director's decision to grant the petition and initiate rulemaking. We will prepare the appropriate NEPA compliance documents as part of the rulemaking process.
Environmental Protection Agency.
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a revision to the Illinois State Implementation Plan. The revision amends the Illinois Administrative Code by updating the definition of volatile organic material or volatile organic compound to exclude additional compounds. This revision is in response to EPA rulemakings in 2013 which exempted these chemical compounds from the Federal definition of volatile organic compounds because, in their intended uses, the compounds have a negligible contribution to tropospheric ozone formation.
Comments must be received on or before March 23, 2015.
Submit your comments, identified by Docket ID No. EPA–R05–OAR–2014–0504, by one of the following methods:
1.
2.
3.
4.
5.
Douglas Aburano, Section Chief, Attainment Planning and Maintenance Section, Air Programs Branch (AR–18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353–6960,
In the Final Rules section of this
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the Texas State Implementation Plan (SIP) submitted to meet Emissions Inventory (EI) requirements of the Clean Air Act (CAA) for the Dallas-Fort-Worth (DFW) and the Houston-Galveston-Brazoria (HGB) nonattainment areas. EPA is proposing to approve the SIP revisions because they satisfy the CAA EI requirements for the DFW and HGB nonattainment areas under the 2008 eight-hour ozone National Ambient Air Quality Standard (NAAQS). EPA is proposing to approve the revisions pursuant to section 110 and part D of the CAA and EPA's regulations.
Written comments should be received on or before March 23, 2015.
Comments may be mailed to Mr. Guy Donaldson, Chief, Air Planning Section (6PD–L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202–2733. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the
Nevine Salem, (214) 665–7222,
In the final rules section of this
For additional information, see the direct final rule which is located in the rules section of this
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; availability of joint state/tribal hatchery plans and request for comment.
Notice is hereby given that the Washington Department of Fish and Wildlife and the Jamestown S'Klallam Tribe have submitted three Hatchery and Genetic Management Plans, to be considered jointly, to NMFS pursuant to the limitation on take prohibitions for actions conducted under Limit 6 of the 4(d) Rule for salmon and steelhead promulgated under the Endangered Species Act (ESA). The plans specify the propagation of three species of salmon in the Dungeness River watershed of Washington State. This document serves to notify the public of the availability for comment of the proposed evaluation of the Secretary of Commerce (Secretary) as to whether implementation of the joint plan will appreciably reduce the likelihood of survival and recovery of ESA-listed Puget Sound Chinook salmon and Puget Sound steelhead.
This notice further advises the public of the availability for review of a draft Environmental Assessment of the effects of the NMFS determination on the subject joint plans.
Comments must be received at the appropriate address or fax number (see
Written comments on the proposed evaluation and pending determination should be addressed to the NMFS Sustainable Fisheries Division, 510 Desmond Dr., Suite 103, Lacey, WA 98503. Comments may be submitted by email. The mailbox address for providing email comments is:
Tim Tynan at (360) 753–9579 or email:
Chinook salmon (
Steelhead (
Chum salmon (
Bull trout (
The Jamestown S'Klallam Tribe and the WDFW have submitted to NMFS plans for three jointly operated hatchery programs in the Dungeness River basin. The plans were submitted in January 2013, pursuant to limit 6 of the 4(d) Rule for the listed Puget Sound Chinook salmon evolutionarily significant unit (ESU) and listed Puget Sound steelhead distinct population segment (DPS). The plans reflect refinements of existing plans provided previously and evaluated pursuant to the 4(d) Rule. The hatchery programs release ESA-listed Chinook salmon and non-listed coho and fall-run pink salmon into the Dungeness River watershed. All three programs release fish native to the Dungeness River basin. All of the programs are currently operating.
As required by the ESA 4(d) Rule (65 FR 42422, July 10, 2000, as updated in 70 FR 37160, June 28, 2005), the Secretary is seeking public comment on her pending determination as to whether the joint plans for hatchery programs in the Dungeness River would appreciably reduce the likelihood of survival and recovery of the ESA-listed Puget Sound salmon and steelhead.
Under section 4(d) of the ESA, the Secretary is required to adopt such regulations as she deems necessary and advisable for the conservation of species listed as threatened. NMFS has issued a final ESA 4(d) Rule for salmon and steelhead, adopting in Limit 6 regulations necessary and advisable to harmonize statutory conservation requirements with tribal rights and the Federal trust responsibility to tribes (50 CFR 223.209).
This 4(d) Rule applies the prohibitions enumerated in section 9(a)(1) of the ESA. NMFS did not find it necessary and advisable to apply the take prohibitions described in section 9(a)(1)(B) and 9(a)(1)(C) to artificial propagation activities if those activities are managed in accordance with a joint plan whose implementation has been determined by the Secretary to not appreciably reduce the likelihood of survival and recovery of the listed salmonids. As specified in limit 6 of the 4(d) Rule, before the Secretary makes a decision on the joint plan, the public must have an opportunity to review and comment on the pending determination.
Under section 4 of the ESA, the Secretary of Commerce is required to adopt such regulations as she deems necessary and advisable for the conservation of species listed as threatened. The ESA salmon and steelhead 4(d) Rule (65 FR 42422, July 10, 2000, as updated in 70 FR 37160, June 28, 2005) specifies categories of activities that contribute to the conservation of listed salmonids and sets out the criteria for such activities. Limit 6 of the updated 4(d) Rule (50 CFR 223.203(b)(6)) further provides that the prohibitions of paragraph (a) of the updated 4(d) Rule (50 CFR 223.203(a)) do not apply to activities associated with a joint state/tribal artificial propagation plan provided that the joint plan has been determined by NMFS to be in accordance with the salmon and steelhead 4(d) Rule (65 FR 42422, July 10, 2000, as updated in 70 FR 37160, June 28, 2005).
National Marine Fisheries Service, NMFS, National Oceanic and Atmospheric Administration, NOAA, Commerce.
Notice of public meetings.
The Caribbean Fishery Management Council's District Advisory Panels (DAPs) for Puerto Rico, St. Croix and St. Thomas, USVI, will hold meetings.
The meetings will be held on the following dates and locations:
Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918; telephone: (787) 766–5926.
The DAPs will meet to discuss the items contained in the following agenda:
The meetings are open to the public, and will be conducted in English. Fishers and other interested persons are invited to attend and participate with oral or written statements regarding agenda issues.
This meeting is physically accessible to people with disabilities. For more information or request for sign language interpretation and/other auxiliary aids, please contact Mr. Miguel A. Rolón, Executive Director, Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918, telephone (787) 766–5926, at least 5 days prior to the meeting date.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of public meeting.
The Caribbean Fishery Management Council's (CFMC) Outreach and Education Advisory Panel (OEAP) will meet.
The meeting will be held on March 10, 2015, from 9 a.m. to 5 p.m.
The meeting will be held at CFMC Office, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918.
Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico 00918; telephone: (787) 766–5926.
The OEAP will meet to discuss the items contained in the following agenda:
The meeting is open to the public, and will be conducted in English. Fishers and other interested persons are invited to attend and participate with oral or written statements regarding agenda issues.
This meeting is physically accessible to people with disabilities. For more information or request for sign language interpretation and/other auxiliary aids, please contact Mr. Miguel A. Rolón, Executive Director, Caribbean Fishery Management Council, 270 Muñoz Rivera Avenue, Suite 401, San Juan, Puerto Rico, 00918, telephone (787) 766–5926, at least 5 days prior to the meeting date.
Committee for Purchase From People Who Are Blind or Severely Disabled.
Addition to the Procurement List.
This action adds a service to the Procurement List that will be provided by a nonprofit agency employing persons who are blind or have other severe disabilities.
Effective Date: 3/23/2015.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202–4149.
Patricia Briscoe, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
On 12/05/2014 (79 FR 72171), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed addition to the Procurement List.
After consideration of the material presented to it concerning capability of
I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:
1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organization that will provide the service to the Government.
2. The action will result in authorizing a small entity to provide the service to the Government.
3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501–8506) in connection with the service proposed for addition to the Procurement List.
Accordingly, the following service is added to the Procurement List:
10:00 a.m., Friday, February 27, 2015.
Three Lafayette Centre, 1155 21st Street NW., Washington, DC, 9th Floor Commission Conference Room.
Closed.
Surveillance, enforcement, and examinations matters. In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time, date, and/or place of the meeting will be posted on the Commission's Web site at
Christopher Kirkpatrick, 202–418–5964.
U.S. Election Assistance Commission.
Notice of public meeting (amended meeting date).
EAC is amending the original Sunshine Notice that published on February 6, 2015. Due to an inclement weather forecast, EAC postponed the public meeting that was originally scheduled for Wednesday, February 18, 2015. The public meeting has been rescheduled for Tuesday, February 24, 2015, 10:00 a.m.–1:00 p.m.; U.S. Election Assistance Commission; 1335 East West Highway, EAC Office; Silver Spring, MD, 20910. The EAC public meeting agenda items remain the same.
Tuesday, February 24, 2015, 10:00 a.m.–1:00 p.m. EST.
U.S. Election Assistance Commission, 1335 East West Highway (EAC Office), Silver Spring, MD 20910, (Metro Stop: Silver Spring on the Red Line).
Bryan Whitener, Telephone: (301) 563–3961.
Commissioners will meet to select a chair and vice-chair and to discuss the following items: Accreditation Decision for Pro V&V; Briefing and Discussion of Voluntary Voting Systems Guidelines (VVSG 1.1); Briefing and Discussion of Program Manuals; and Discussion and Consideration of Roles and Responsibilities Document. As stated in the original notice, members of the public who wish to speak at the meeting on proposed changes to the Voluntary Voting Systems Guidelines VVSG 1.1 were requested to send a request to participate to the EAC no later than 5:00 p.m. EDT on Thursday, February 12, 2015.
This meeting will be open to the public.
Environmental Protection Agency (EPA).
Notice.
EPA is required under the Toxic Substances Control Act (TSCA) to publish in the
Comments identified by the specific PMN number or TME number, must be received on or before March 23, 2015.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPPT–2015–0120, and the specific PMN number or TME number for the chemical related to your comment, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitter of the PMNs addressed in this action.
1.
2.
This document provides receipt and status reports, which cover the period from December 1, 2014 to December 31, 2014, and consists of the PMNs and TMEs both pending and/or expired, and the NOCs to manufacture a new chemical that the Agency has received under TSCA section 5 during this time period.
Section 5 of TSCA requires that EPA periodical publish in the
EPA classifies a chemical substance as either an “existing” chemical or a “new” chemical. Any chemical substance that is not on EPA's TSCA Inventory is classified as a “new chemical,” while those that are on the TSCA Inventory are classified as an “existing chemical.” For more information about the TSCA Inventory go to:
Under TSCA sections 5(d)(2) and 5(d)(3), EPA is required to publish in the
In Table I. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the PMNs received by EPA during this period: The EPA case number assigned to the PMN, the date the PMN was received by EPA, the projected end date for EPA's review of the PMN, the submitting manufacturer/importer, the potential uses identified by the manufacturer/importer in the PMN, and the chemical identity.
In Table II. of this unit, EPA provides the following information (to the extent that such information is not claimed as CBI) on the NOCs received by EPA during this period: The EPA case number assigned to the NOC, the date the NOC was received by EPA, the projected end date for EPA's review of the NOC, and chemical identity.
If you are interested in information that is not included in these tables, you may contact EPA as described in Unit III. To access additional non-CBI information that may be available.
15 U.S.C. 2601
Weekly receipt of Environmental Impact Statements Filed 02/09/2015 Through 02/13/2015 Pursuant to 40 CFR 1506.9.
Section 309(a) of the Clean Air Act requires that EPA make public its comments on EISs issued by other Federal agencies. EPA's comment letters on EISs are available at:
Environmental Protection Agency (EPA).
Notice of a final decision on a no migration petition reissuance.
Notice is hereby given that a reissuance of an exemption to the land disposal Restrictions, under the 1984 Hazardous and Solid Waste Amendments to the Resource Conservation and Recovery Act, has been granted to Lucite International, Inc. for two Class I hazardous injection wells located at their Beaumont site located in Nederland, TX. The company has adequately demonstrated to the satisfaction of the Environmental Protection Agency by the petition reissuance application and supporting documentation that, to a reasonable degree of certainty, there will be no migration of hazardous constituents from the injection zone for as long as the waste remains hazardous. This final decision allows the continued underground injection by Lucite, of the specific restricted hazardous wastes identified in this exemption reissuance, into Class I hazardous waste injection wells WDW–100 & 101 until December 31, 2030, unless EPA moves to terminate this exemption. Additional conditions included in this final decision may be reviewed by contacting the Region 6 Ground Water/UIC Section. A public notice was issued December 18, 2014. The public comment period closed on February 2, 2015. No comments were received. This decision constitutes final Agency action and there is no Administrative appeal. This decision may be reviewed/appealed in compliance with the Administrative Procedure Act.
This action is effective as of February 5, 2015.
Copies of the petition reissuance and all pertinent information relating thereto are on file at the following location: Environmental Protection Agency, Region 6, Water Quality Protection Division, Source Water Protection Branch (6WQ–S), 1445 Ross Avenue, Dallas, Texas 75202–2733.
Philip Dellinger, Chief Ground Water/UIC Section, EPA—Region 6, telephone (214) 665–8324.
Pursuant to the provisions of the “Government in the Sunshine Act” (5 U.S.C. 552b), notice is hereby given that at 10:03 a.m. on Tuesday, February 17, 2015, the Board of Directors of the Federal Deposit Insurance Corporation met in closed session to consider matters related to the Corporation's supervision, corporate, and resolution activities.
In calling the meeting, the Board determined, on motion of Vice Chairman Thomas M. Hoenig, seconded by Director Jeremiah O. Norton (Appointive), concurred in by Director Thomas J. Curry (Comptroller of the Currency), Director Richard Cordray (Director, Consumer Financial Protection Bureau), and Chairman Martin J. Gruenberg, that Corporation business required its consideration of the matters which were to be the subject of this meeting on less than seven days' notice to the public; that no earlier notice of the meeting was practicable; that the public interest did not require consideration of the matters in a meeting open to public observation; and that the matters could be considered in a closed meeting by authority of subsections (c)(4), (c)(6), (c)(8), (c)(9)(A)(ii), and (c)(9)(B) of the “Government in the Sunshine Act” (5 U.S.C. 552b(c)(4), (c)(6), (c)(8), (c)(9)(A)(ii), and (c)(9)(B).
The meeting was held by telephone.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft document entitled “Investigating and Reporting Adverse Reactions Related to Human Cells, Tissues, and Cellular and Tissue-Based Products (HCT/Ps) Regulated Solely Under Section 361 of the Public Health Service Act and 21 CFR part 1271” dated February 2015. The draft guidance document is intended to provide manufacturers of human cells, tissues, and cellular and tissue-based products (HCT/Ps) for which no premarket submissions are required because they are not also regulated as drugs, devices, and/or biological products, with recommendations for complying with the requirements for investigating and reporting adverse reactions involving communicable disease in recipients of these HCT/Ps. The draft guidance, when finalized, is intended to supplement section XXII of FDA's guidance entitled “Guidance for Industry: Current Good Tissue Practice (CGTP) and Additional Requirements for Manufacturers of Human Cells, Tissues, and Cellular and Tissue-Based Products (HCT/Ps)” dated December 2011 and supersede the guidance entitled “Guidance for Industry: MedWatch Form FDA 3500A: Mandatory Reporting of Adverse Reactions Related to Human Cells, Tissues, and Cellular and Tissue-Based Products (HCT/Ps)” dated November 2005.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comment on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by April 21, 2015.
Submit written requests for single copies of the draft guidance to the Office of Communication, Outreach, and Development, Center for Biologics Evaluation and Research (CBER), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 3128, Silver Spring, MD 20993–0002. Send one self-addressed adhesive label to assist the office in processing your requests. The draft guidance may also be obtained by mail by calling CBER at 1–800–835–4709 or 240–402–7800. See the
Submit electronic comments on the draft guidance to
Lori J. Churchyard, Center for Biologics Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 71, Rm. 7301, Silver Spring, MD 20993–0002, 240–402–7911.
FDA is announcing the availability of a draft document entitled “Investigating and Reporting Adverse Reactions Related to Human Cells, Tissues, and Cellular and Tissue-Based Products (HCT/Ps) Regulated Solely Under Section 361 of the Public Health Service Act and 21 CFR part 1271” dated February 2015. The draft guidance document is intended provide manufacturers of HCT/Ps, with recommendations for complying with the requirements for investigating and reporting adverse reactions involving communicable disease in recipients of HCT/Ps that are regulated solely under section 361 of the Public Health Service Act (42 U.S.C. 264) and 21 CFR part 1271 (361 HCT/Ps).
The draft guidance, when finalized, is intended to supplement section XXII of FDA's guidance entitled “Guidance for Industry: Current Good Tissue Practice (CGTP) and Additional Requirements for Manufacturers of Human Cells, Tissues, and Cellular and Tissue-Based Products (HCT/Ps)” dated December 2011 by providing additional recommendations specific to the responsibilities to investigate complaints of adverse reactions concerning 361 HCT/Ps under §§ 1271.160(b)(2), 1271.320 and 1271.350(a)(1).
The draft guidance, when finalized, is intended to supersede the guidance entitled “Guidance for Industry: MedWatch Form FDA 3500A: Mandatory Reporting of Adverse Reactions Related to Human Cells, Tissues, and Cellular and Tissue-Based Products (HCT/Ps)” dated November 2005. The guidance will provide updated information specific to reporting adverse reactions related to HCT/Ps to supplement the general instructions accompanying the MedWatch mandatory reporting form, Form FDA 3500A.
The draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent FDA's current thinking on this topic. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirement of the applicable statutes and regulations.
The draft guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501–3520). The collections of information in part 1271 have been approved under OMB control number 0910–0543 and OMB control number 0910–0291.
The draft guidance is being distributed for comment purposes only and is not intended for implementation at this time. Interested persons may submit either electronic comments regarding this document to
Persons with access to the Internet may obtain the draft guidance at either
Health Resources and Services Administration, HHS.
Notice.
In compliance with the requirement for opportunity for public comment on proposed data collection projects (section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995), the Health Resources and Services Administration (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 Information Collection Request must be received no later than April 21, 2015.
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
When submitting comments or requesting information, please include the information request collection title for reference.
Total Estimated Annualized burden hours:
HRSA specifically requests comments on: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
Health Resources and Services Administration, HHS.
Notice.
In compliance with section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the Health Resources and Services Administration (HRSA) has submitted an Information Collection Request (ICR) to the Office of Management and Budget (OMB) for review and approval. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public during the review and approval period.
Comments on this ICR should be received no later than March 23, 2015.
Submit your comments, including the Information Collection Request Title, to the desk officer for HRSA, either by email to
To request a copy of the clearance requests submitted to OMB for review, email the HRSA Information Collection Clearance Officer at
The Committee was established under the Public Health Service Act, 42 U.S.C. 217a: Advisory Councils or Committees. This Committee fulfills the functions previously undertaken by the former Secretary's Advisory Committee on Heritable Disorders in Newborns and Children, established under section 1111 of the Public Health Service Act (PHS), 42 U.S.C. 300b–10, as amended in the Newborn Screening Saves Lives Act of 2008. The Committee is governed by the provisions of the Federal Advisory Committee Act (FACA), as amended (5 U.S.C. App.), which sets forth standards for the formation and use of advisory committees. The purpose of the Committee is to provide the Secretary with recommendations, advice, and technical information regarding the most appropriate application of technologies, policies,
The Committee tasks an external workgroup to conduct systematic evidence based reviews. The reviews are of rare, genetic conditions and their corresponding newborn screening test(s), confirmatory test(s), and treatment(s). Reviews also include an analysis of the benefits and harms of newborn screening for a selected condition at a population level and an assessment of state public health newborn screening programs' ability to implement the screening of a new condition.
The data gathered will inform the Committee on the following: (1) Feasibility of implementing population-based screening for the target condition; (2) readiness of state newborn screening programs to adopt screening for the condition; (3) identify gaps in feasibility or readiness to screen for the condition; and (4) identify areas of technical assistance and resources needed to facilitate screening for conditions with low feasibility or readiness.
Health Resources and Services Administration, HHS.
Notice.
In compliance with the requirement for opportunity for public comment on proposed data collection projects (section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995), the Health Resources and Services Administration (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 April 21, 2015.
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
When submitting comments or requesting information, please include the information request collection title for reference.
Total Estimated Annualized burden hours:
HRSA specifically requests comments on: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
The Indian Health Service (IHS) Office of Tribal Self-Governance (OTSG) is accepting limited competition Planning Cooperative Agreement applications for the Tribal Self-Governance Program (TSGP). This program is authorized under Title V of the Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. 458aaa–2(e). This program is described in the Catalog of Federal Domestic Assistance (CFDA), available at
The TSGP is more than an IHS program; it is an expression of the government-to-government relationship between the United States and Indian Tribes. Through the TSGP, Tribes negotiate with the IHS to assume Programs, Services, Functions and Activities (PSFAs), or portions thereof, which gives Tribes the authority to manage and tailor health care programs in a manner that best fits the needs of their communities.
Participation in the TSGP is one of three ways that Tribes can choose to obtain health care from the Federal Government for their members. Specifically, Tribes can choose to: (1) Receive health care services directly from the IHS, (2) contract with the IHS to administer individual PSFAs that the IHS would otherwise provide (referred to as Title I Self-Determination Contracting), or (3) compact with the IHS to assume control over healthcare PSFAs that the IHS would otherwise provide (referred to as Title V Self-Governance Compacting or the TSGP). These options are not exclusive and Tribes may choose to combine options based on their individual needs and circumstances. Participation in the TSGP affords Tribes the most flexibility to tailor health care PSFAs to the needs of their communities.
The TSGP is a Tribally-driven initiative and strong Tribal/Federal partnerships are essential for program success. The IHS established the OTSG to implement Tribal Self-Governance authorities. The OTSG: (1) Serves as the primary liaison and advocate for Tribes participating in the TSGP, (2) develops, directs, and implements Tribal Self-Governance policies and procedures, (3) provides information and technical
The purpose of this Planning Cooperative Agreement is to provide resources to Tribes interested in entering the TSGP and to existing Self-Governance Tribes interested in assuming new or expanded PSFAs. Title V of the ISDEAA requires a Tribe or Tribal organization to complete a planning phase to the satisfaction of the Tribe. The planning phase must include legal and budgetary research and internal Tribal government planning and organization preparation relating to the administration of health care programs.
The planning phase helps Tribes make informed decisions about which PSFAs to assume and what organizational changes or modifications are necessary to successfully support those PSFAs. A thorough planning phase improves timeliness and efficiency of negotiations and ensures that the Tribe is fully prepared to assume the transfer of IHS PSFAs to the Tribal health program.
A Planning Cooperative Agreement is not a prerequisite to enter the TSGP and a Tribe may use other resources to meet the planning requirements. Tribes that receive a Planning Cooperative Agreement are not obligated to participate in the TSGP and may choose to delay or decline participation based on the outcome of their planning activities. This also applies to existing Self-Governance Tribes exploring the option to expand their current PSFAs or assume additional PSFAs.
There is limited competition under this announcement because the authorizing legislation restricts eligibility to Tribes that meet specific criteria.
Cooperative Agreement.
The total amount of funding identified for the current fiscal year (FY) 2015 is approximately $600,000. Individual award amounts are anticipated to be $120,000. The amount of funding available for competing awards issued under this announcement is subject to the availability of appropriations and budgetary priorities of the Agency. The IHS is under no obligation to make awards that are selected for funding under this announcement.
Approximately five awards will be issued under this program announcement.
The project period is for 12 months and runs from July 1, 2015 to June 30, 2016.
Cooperative agreements awarded by the Department of Health and Human Services (HHS) are administered under the same policies as a grant. The funding agency (IHS) is required to have substantial programmatic involvement in the project during the entire award segment. Below is a detailed description of the level of involvement required for both IHS and the grantee. IHS will be responsible for activities listed under section A and the grantee will be responsible for activities listed under section B as stated:
(1) Provide descriptions of PSFAs and associated funding at all organizational levels (Service Unit, Area, and Headquarters), including funding formulas and methodologies related to determining Tribal shares.
(2) Meet with Planning Cooperative Agreement recipient to provide program information and discuss methods currently used to manage and deliver health care.
(3) Identify and provide statutes, regulations, and policies that provide authority for administering IHS programs.
(4) Provide technical assistance on the IHS budget, Tribal shares, and other topics as needed.
(1) Research and analyze the complex IHS budget to gain a thorough understanding of funding distribution at all organizational levels and to determine which PSFAs the Tribe may elect to assume or expand.
(2) Establish a process by which Tribes may approach the IHS to identify PSFAs and associated funding that may be incorporated into their current programs.
(3) Determine the Tribe's share of each PSFA and evaluate the current level of healthcare services being provided to make an informed decision on new or expanded program assumption(s).
To be eligible for this Limited Competition Planning Cooperative Agreement under this announcement, an applicant must:
A. Be an “Indian Tribe” as defined in 25 U.S.C. 450b(e); a “Tribal Organization” as defined in 25 U.S.C. 450b(l); or an “Inter-Tribal Consortium” as defined at 42 CFR 137.10. However, Alaska Native Villages or Alaska Native Village Corporations are not eligible if they are located within the area served by an Alaska Native regional health entity.
B. Submit a Tribal resolution from the appropriate governing body of each Indian Tribe to be served by the ISDEAA Compact authorizing the submission of the Planning Cooperative Agreement application. Tribal consortia applying for a TSGP Planning Cooperative Agreement shall submit Tribal Council resolutions from each Tribe in the consortium. Tribal resolutions can be attached to the electronic online application. Applications by Tribal organizations will not require a specific Tribal resolution if the current Tribal resolution(s) under which they operate would encompass the proposed grant activities.
Draft Tribal resolutions are acceptable in lieu of an official signed resolution
Mail the official signed resolution to the DGM, Attn: Mr. John Hoffman, 801 Thompson Avenue, TMP Suite 360, Rockville, MD 20852. Applicants submitting Tribal resolutions after or aside from the required online electronic application submission must ensure that the information is received by the IHS/DGM. It is highly recommended that the documentation be sent by a delivery method that includes delivery confirmation and tracking. Please contact Mr. Hoffman by telephone at (301) 443–5204 prior to the review date regarding submission questions.
C. Demonstrate, for three fiscal years, financial stability and financial management capability. The Indian Tribe must provide evidence that, for the three years prior to participation in Self-Governance, the Indian Tribe has had no uncorrected significant and material audit exceptions in the required annual audit of the Indian Tribe's Self-Determination Contracts or Self-Governance Funding Agreements with any Federal agency.
For Tribes or Tribal organizations that expended $750,000 or more ($500,000 for FYs ending after December 31, 2003) in Federal awards, the OTSG shall retrieve the audits directly from the Federal Audit Clearinghouse.
For Tribes or Tribal organizations that expended less than $750,000 ($500,000 for FYs ending after December 31, 2003) in Federal awards, the Tribe or Tribal organization must provide evidence of the program review correspondence from IHS or Bureau of Indian Affairs officials.
Meeting the eligibility criteria for a Planning Cooperative Agreement does not mean that a Tribe or Tribal organization is eligible for participation in the IHS TSGP under Title V of the ISDEAA.
Please refer to Section IV.2 (Application and Submission Information/Subsection 2, Content and Form of Application Submission) for additional proof of applicant status documents required such as Tribal resolutions, proof of non-profit status, etc.
The IHS does not require matching funds or cost sharing for grants or cooperative agreements.
If application budgets exceed the highest dollar amount outlined under the “Estimated Funds Available” section within this funding announcement, the application will be considered ineligible and will not be reviewed for further consideration. If deemed ineligible, IHS will not return the application. The applicant will be notified by email by the DGM of this decision.
The application package and detailed instructions for this announcement can be found at
Questions regarding the electronic application process may be directed to Mr. Paul Gettys at (301) 443–2114.
The applicant must include the project narrative as an attachment to the application package. Mandatory documents for all applicants include:
• Table of contents.
• Abstract (one page) summarizing the project.
• Application forms:
○ SF–424, Application for Federal Assistance.
○ SF–424A, Budget Information—Non-Construction Programs.
○ SF–424B, Assurances—Non-Construction Programs.
• Budget Justification and Narrative (must be single spaced and not exceed five pages).
• Project Narrative (must be single spaced and not exceed ten pages).
○ Background information on the Tribe or Tribal organization.
○ Proposed scope of work, objectives, and activities that provide a description of what will be accomplished, including a one-page Timeframe Chart.
• Tribal Resolution(s).
• 501(c)(3) Certificate (if applicable).
• Biographical sketches for all Key Personnel.
• Contractor/Consultant resumes or qualifications and scope of work.
• Disclosure of Lobbying Activities (SF–LLL).
• Certification Regarding Lobbying (GG-Lobbying Form).
• Copy of current Negotiated Indirect Cost rate (IDC) agreement (required) in order to receive IDC.
• Organizational Chart (optional).
A. Project Narrative: This narrative should be a separate Word document that is no longer than ten pages and must: Be single-spaced, be type written, have consecutively numbered pages, use black type not smaller than 12 characters per one inch, and be printed on one side only of standard size 8
Be sure to succinctly address and answer all questions listed under the narrative and place them under the evaluation criteria (refer to Section V.1, Evaluation criteria in this announcement), and place all responses and required information in the correct section (noted below), or it shall not be considered or scored. These narratives will assist the ORC in becoming familiar with the applicant's activities and accomplishments prior to a cooperative agreement award. If the narrative exceeds the page limit, only the first ten pages will be reviewed. The 10-page limit for the narrative does not include the work plan, standard forms, Tribal resolutions, table of contents, budget and budget justifications/narratives, and/or other appendix items.
There are three parts to the narrative, including: (1) Part A—Program Information; (2) Part B—Program Planning and Evaluation; and (3) Part C—Program Report. See below for additional details about what must be included in the narrative.
Describe the Tribe's current health program activities, including: how long it has been operating, the programs or services currently being provided, and if the applicant is currently administering any ISDEAA Title I Self-Determination
State in measurable terms the objectives and appropriate activities to achieve the following Cooperative Agreement Recipient Award Activities:
(a) Research and analyze the complex IHS budget to gain a thorough understanding of funding distribution at all organizational levels and determine which PSFAs the Tribe may elect to assume or expand.
(b) Establish a process to identify PSFAs and associated funding that may be incorporated into current programs.
(c) Determine the Tribe's share of each PSFA and evaluate the current level of health care services being provided to make an informed decision on new program assumption(s).
Describe how the objectives are consistent with the purpose of the program, the needs of the people to be served, and how they will be achieved within the proposed time frame. Identify the expected results, benefits, and outcomes or products to be derived from each objective of the project.
Describe the organizational structure of the Tribe and its ability to manage the proposed project. Include resumes or position descriptions of key staff showing requisite experience and expertise. If applicable, include resumes and scope of work for consultants that demonstrate experience and expertise relevant to the project.
Define the criteria to be used to evaluate planning activities. Describe fully and clearly the methodology that will be used to determine if the needs identified are being met and if the outcomes are being achieved. This section must address the following questions:
(a) Are the goals and objectives measurable and consistent with the purpose of the program and the needs of the people to be served?
(b) Are they achievable within the proposed time frame?
Section 1: Describe major accomplishments over the last 24 months. Please identify and describe significant health related accomplishments associated with the delivery of quality health services. Provide a comparison of the actual accomplishments to the goals established for the project period, or if applicable, provide justification for the lack of progress. This section should highlight major program achievements over the last 24 months.
Section 2: Describe major activities over the last 24 months.
Please provide an overview of significant program activities associated with the delivery of quality health services over the last 24 months. This section should address significant program activities including those related to the accomplishments listed in the previous section.
B. Budget Narrative: This narrative must include a line item budget with a narrative justification for all expenditures identifying reasonable and allowable costs necessary to accomplish the goals and objectives as outlined in the project narrative. Budget should match the scope of work described in the project narrative. The page limitation should not exceed five pages.
Applications must be submitted electronically through Grants.gov by 11:59 p.m. Eastern Standard Time (EST) on the Application Deadline Date listed in the Key Dates section on page one of this announcement. Any application received after the application deadline will not be accepted for processing, nor will it be given further consideration for funding. Grants.gov will notify the applicant via email if the application is rejected.
If technical challenges arise and assistance is required with the electronic application process, contact Grants.gov Customer Support via email to
If the applicant needs to submit a paper application instead of submitting electronically through Grants.gov, a waiver must be requested. Prior approval must be requested and obtained from Ms. Tammy Bagley, Acting Director of DGM, (see Section IV.6 below for additional information). The waiver must: (1) Be documented in writing (emails are acceptable), before submitting a paper application, and (2) include clear justification for the need to deviate from the required electronic grants submission process. A written waiver request must be sent to
Executive Order 12372 requiring intergovernmental review is not applicable to this program.
• Pre-award costs are not allowable.
• The available funds are inclusive of direct and appropriate indirect costs.
• Only one grant/cooperative agreement will be awarded per applicant per grant cycle. Tribes cannot apply for both the Planning Cooperative Agreement and the Negotiation Cooperative Agreement within the same grant cycle.
• IHS will not acknowledge receipt of applications.
All applications must be submitted electronically. Please use the
If the applicant receives a waiver to submit paper application documents, they must follow the rules and timelines that are noted below. The applicant must seek assistance at least ten days prior to the Application Deadline Date listed in the Key Dates section on page one of this announcement.
Applicants that do not adhere to the timelines for System for Award Management (SAM) and/or
Please be aware of the following:
• Please search for the application package in
• If you experience technical challenges while submitting your application electronically, please contact Grants.gov Support directly at:
• Upon contacting Grants.gov, obtain a tracking number as proof of contact. The tracking number is helpful if there are technical issues that cannot be resolved and a waiver from the agency must be obtained.
• If it is determined that a waiver is needed, the applicant must submit a request in writing (emails are acceptable) to
• If the waiver is approved, the application should be sent directly to the DGM by the Application Deadline Date listed in the Key Dates section on page one of this announcement.
• Applicants are strongly encouraged not to wait until the deadline date to begin the application process through Grants.gov as the registration process for SAM and Grants.gov could take up to fifteen working days.
• Please use the optional attachment feature in Grants.gov to attach additional documentation that may be requested by the DGM.
• All applicants must comply with any page limitation requirements described in this Funding Announcement.
• After electronically submitting the application, the applicant will receive an automatic acknowledgment from Grants.gov that contains a Grants.gov tracking number. The DGM will download the application from Grants.gov and provide necessary copies to the appropriate agency officials. Neither the DGM nor the OTSG will notify the applicant that the application has been received.
• Email applications will not be accepted under this announcement.
All IHS applicants and grantee organizations are required to obtain a UEI number and maintain an active registration in the SAM database. The UEI number is a unique 9-digit identification number provided to each entity. The UEI number is site specific; therefore, each distinct performance site may be assigned a UEI number. Obtaining a UEI number is easy, and there is no charge. To obtain a UEI number, please contact Mr. Paul Gettys at (301) 443–2114.
All HHS recipients are required by the Federal Funding Accountability and Transparency Act of 2006, as amended (“Transparency Act”), to report information on subawards. Accordingly, all IHS grantees must notify potential first-tier subrecipients that no entity may receive a first-tier subaward unless the entity has provided its UEI number to the prime grantee organization. This requirement ensures the use of a universal identifier to enhance the quality of information available to the public pursuant to the Transparency Act.
Organizations that were not registered with Central Contractor Registration (CCR) and have not registered with SAM will need to obtain a UEI number first and then access the SAM online registration through the SAM home page at
Additional information on implementing the Transparency Act, including the specific requirements for UEI and SAM, can be found on the IHS Grants Management, Grants Policy Web site:
The instructions for preparing the application narrative also constitute the evaluation criteria for reviewing and scoring the application. Weights assigned to each section are noted in parentheses. The ten-page narrative section should be written in a manner that is clear and concise to outside reviewers unfamiliar with prior related activities of the applicant. It should be well organized, succinct, and contain all information necessary for reviewers to understand the project fully. Points will be assigned to each evaluation criteria adding up to a total of 100 points. A minimum score of 60 points is required for funding. Points are assigned as follows:
Describe the Tribe's current health program activities, including: How long it has been operating, programs or services currently being provided and if the applicant is currently administering any ISDEAA Title I Self-Determination Contracts or Title V Self-Governance Compacts. Identify the need for assistance and how the Planning Cooperative Agreement would benefit the health activities the Tribe is currently administering.
State in measurable terms the objectives and appropriate activities to achieve the following Cooperative Agreement Recipient Award Activities:
(1) Research and analyze the complex IHS budget to gain a thorough understanding of funding distribution at all organizational levels and to determine which PSFAs the Tribe may elect to assume or expand.
(2) Establish a process to identify PSFAs and associated funding that may be incorporated into current programs.
(3) Determine the Tribe's share of each PSFA and evaluate the current level of health care services being provided to make an informed decision on new program assumption(s).
Describe how the objectives are consistent with the purpose of the program, the needs of the people to be served, and how the objectives will be achieved within the proposed time frame. Identify the expected results, benefits, and outcomes or products to be
Define the criteria to be used to evaluate planning activities. Clearly describe the methodologies and parameters that will be used to determine if the needs identified are being met and if the outcomes identified are being achieved. Are the goals and objectives measurable and consistent with the purpose of the program and meet the needs of the people to be served? Are they achievable within the proposed time frame? Describe how the assumption of PSFAs enhances sustainable health delivery. Ensure the measurement includes activities that will lead to sustainability.
Describe the organizational structure of the Tribe and its ability to manage the proposed project. Include resumes or position descriptions of key staff showing requisite experience and expertise. If applicable, include resumes and scope of work for consultants that demonstrate experience and expertise relevant to the project.
Submit a budget with a narrative describing the budget request and matching the scope of work described in the project narrative. Justify all expenditures identifying reasonable and allowable costs necessary to accomplish the goals and objectives as outlined in the project narrative.
Additional documents can be uploaded as Appendix Items in Grants.gov.
• Work plan, logic model and/or time line for proposed objectives.
• Position descriptions for key staff.
• Resumes of key staff that reflect current duties.
• Consultant or contractor proposed scope of work and letter of commitment (if applicable).
• Current Indirect Cost Agreement.
• Organizational chart.
• Map of area identifying project location(s).
• Additional documents to support narrative (
Each application will be prescreened by the DGM staff for eligibility and completeness as outlined in the funding announcement. Applications that meet the eligibility criteria shall be reviewed for merit by the ORC based on evaluation criteria in this funding announcement. The ORC could be composed of both Tribal and Federal reviewers appointed by the OTSG to review and make recommendations on these applications. The technical review process ensures selection of quality projects in a national competition for limited funding. Incomplete applications and applications that are non-responsive to the eligibility criteria will not be referred to the ORC. The applicant will be notified via email of this decision by the Grants Management Officer of the DGM. Applicants will be notified by DGM, via email, to outline minor missing components (
To obtain a minimum score for funding by the ORC, applicants must address all program requirements and provide all required documentation
The Notice of Award (NoA) is a legally binding document signed by the Grants Management Officer and serves as the official notification of the grant award. The NoA will be initiated by the DGM in our grant system, GrantSolutions (
Applicants who received a score less than the recommended funding level for approval (60 points), and were deemed to be disapproved by the ORC, will receive an Executive Summary Statement from the IHS program office within 30 days of the conclusion of the ORC outlining the strengths and weaknesses of their application submitted. The OTSG will also provide additional contact information as needed to address questions and concerns as well as provide technical assistance if desired.
Approved but unfunded applicants that met the minimum scoring range and were deemed by the ORC to be “Approved”, but were not funded due to lack of funding, will have their applications held by DGM for a period of one year. If additional funding becomes available during the course of FY 2015, the approved but unfunded application may be re-considered by the OTSG for possible funding. The applicant will also receive an Executive Summary Statement from the OTSG within 30 days of the conclusion of the ORC.
Any correspondence other than the official NoA signed by an IHS Grants Management Official announcing to the Project Director that an award has been made to their organization is not an authorization to implement their program on behalf of IHS.
Cooperative agreements are administered in accordance with the following regulations, policies, and OMB cost principles:
A. The criteria as outlined in this Program Announcement.
B. Administrative Regulations for Grants:
• 45 CFR part 75, Uniform Administrative Requirements Cost Principles, and Audit Requirements for HHS Awards.
C. Grants Policy:
• HHS Grants Policy Statement, Revised 01/07.
D. Cost Principles:
• 45 CFR part 75, subpart E—Cost Principles.
E. Audit Requirements:
• 45 CFR part 75, subpart F—Audit Requirements.
This section applies to all grant recipients that request reimbursement of indirect costs (IDC) in their grant application. In accordance with HHS Grants Policy Statement, Part II–27, IHS requires applicants to obtain a current IDC rate agreement prior to award. The rate agreement must be prepared in accordance with the applicable cost principles and guidance as provided by the cognizant agency or office. A current rate covers the applicable grant activities under the current award's budget period. If the current rate is not on file with the DGM at the time of award, the IDC portion of the budget will be restricted. The restrictions remain in place until the current rate is provided to the DGM.
Generally, IDC rates for IHS grantees are negotiated with the Division of Cost
The grantee must submit required reports consistent with the applicable deadlines. Failure to submit required reports within the time allowed may result in suspension or termination of an active grant, withholding of additional awards for the project, or other enforcement actions such as withholding of payments or converting to the reimbursement method of payment. Continued failure to submit required reports may result in one or both of the following: (1) The imposition of special award provisions; and (2) the non-funding or non-award of other eligible projects or activities. This requirement applies whether the delinquency is attributable to the failure of the grantee organization or the individual responsible for preparation of the reports. Reports must be submitted electronically via GrantSolutions. Personnel responsible for submitting reports will be required to obtain a login and password for GrantSolutions. Please see the Agency Contacts list in section VII for the systems contact information.
The reporting requirements for this program are noted below.
Program progress reports are required semi-annually, within 30 days after the budget period ends. These reports must include a brief comparison of actual accomplishments to the goals established for the period, or, if applicable, provide sound justification for the lack of progress, and other pertinent information as required. A final report must be submitted within 90 days of expiration of the budget/project period.
Federal Financial Report FFR (SF–425), Cash Transaction Reports are due 30 days after the close of every calendar quarter to the Payment Management Services, HHS at:
Grantees are responsible and accountable for accurate information being reported on all required reports: The Progress Reports and Federal Financial Report.
This award may be subject to the Transparency Act subaward and executive compensation reporting requirements of 2 CFR part 170.
The Transparency Act requires the OMB to establish a single searchable database, accessible to the public, with information on financial assistance awards made by Federal agencies. The Transparency Act also includes a requirement for recipients of Federal grants to report information about first-tier subawards and executive compensation under Federal assistance awards.
IHS has implemented a Term of Award into all IHS Standard Terms and Conditions, NoAs and funding announcements regarding the FSRS reporting requirement. This IHS Term of Award is applicable to all IHS grant and cooperative agreements issued on or after October 1, 2010, with a $25,000 subaward obligation dollar threshold met for any specific reporting period. Additionally, all new (discretionary) IHS awards (where the project period is made up of more than one budget period) and where: (1) The project period start date was October 1, 2010 or after and (2) the primary awardee will have a $25,000 subaward obligation dollar threshold during any specific reporting period will be required to address the FSRS reporting. For the full IHS award term implementing this requirement and additional award applicability information, visit the DGM Grants Policy Web site at:
Telecommunication for the hearing impaired is available at: TTY (301) 443–6394.
1. Questions on the programmatic issues may be directed to: Jeremy Marshall, Program Official, Office of Tribal Self-Governance, 801 Thompson Avenue, Suite 240, Rockville, MD 20852, Phone: (301) 443–7821, Fax: (301) 443–1050, Email:
2. Questions on grants management and fiscal matters may be directed to: John Hoffman, Grants Management Specialist, Division of Grants Management, 801 Thompson Avenue, TMP Suite 360, Rockville, MD 20852, Phone: (301) 443–5204, Fax: (301) 443–9602, Email:
3. Questions on systems matters may be directed to: Paul Gettys, Grant Systems Coordinator, 801 Thompson Avenue, TMP Suite 360, Rockville, MD 20852, Phone: (301) 443–2114; or the DGM main line (301) 443–5204, Fax: (301) 443–9602, E-Mail:
The Public Health Service strongly encourages all cooperative agreement and contract recipients to provide a smoke-free workplace and promote the non-use of all tobacco products. In addition, Public Law 103–227, the Pro-Children Act of 1994, prohibits smoking in certain facilities (or in some cases, any portion of the facility) in which regular or routine education, library, day care, health care, or early childhood development services are provided to children. This is consistent with the HHS mission to protect and advance the physical and mental health of the American people.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the Recombinant DNA Advisory Committee.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
Information is also available on the Institute's/Center's home page:
OMB's “Mandatory Information Requirements for Federal Assistance Program Announcements” (45 FR 39592, June 11, 1980) requires a statement concerning the official government programs contained in the Catalog of Federal Domestic Assistance. Normally NIH lists in its announcements the number and title of affected individual programs for the guidance of the public. Because the guidance in this notice covers virtually every NIH and Federal research program in which DNA recombinant molecule techniques could be used, it has been determined not to be cost effective or in the public interest to attempt to list these programs. Such a list would likely require several additional pages. In addition, NIH could not be certain that every Federal program would be included as many Federal agencies, as well as private organizations, both national and international, have elected to follow the NIH Guidelines. In lieu of the individual program listing, NIH invites readers to direct questions to the information address above about whether individual programs listed in the Catalog of Federal Domestic Assistance are affected.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice.
This Notice identifies unutilized, underutilized, excess, and surplus Federal property reviewed by HUD for suitability for possible use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7262, Washington, DC 20410; telephone (202) 402–3970; TTY number for the hearing- and speech-impaired (202) 708–2565, (these telephone numbers are not toll-free), or call the toll-free Title V information line at 800–927–7588.
In accordance with the December 12, 1988 court order in
Fish and Wildlife Service, Interior.
Notice of availability.
We, the U.S. Fish and Wildlife Service (Service), announce that our final comprehensive conservation plan and environmental impact statement (CCP/EIS) for the Deer Flat National Wildlife Refuge (Refuge) is available. In the final CCP/EIS, we describe how we propose to manage the Refuge for 15 years.
We will complete a record of decision 30 days after publication of this notice.
The libraries providing public viewing of the final CCP/EIS are listed under
Refuge Manager, 208–467–9278 (phone).
With this notice, we announce the availability of the Refuge's final CCP/EIS in accordance with National Environmental Policy Act (NEPA) 40 CFR 1506.6(b) requirements. We started this process through a notice published in the
The CCP will guide us in managing and administering the Refuge for 15 years. Alternative 2, as we described in the Final CCP/EIS, is our preferred alternative.
The National Wildlife Refuge System Administration Act of 1966, 16 U.S.C. 668dd-668ee (Refuge Administration Act), as amended by the National Wildlife Refuge System Improvement Act of 1997, requires us to develop a CCP for each national wildlife refuge. The purpose for developing a CCP is to provide refuge managers with a 15-year plan for achieving refuge purposes and contributing toward the mission of the National Wildlife Refuge System (Refuge System), consistent with sound principles of fish and wildlife management, conservation, legal mandates, and our policies. In addition to outlining broad management direction on conserving wildlife and their habitats, CCPs identify wildlife-dependent recreational opportunities available to the public, including opportunities for hunting, fishing, wildlife observation and photography, and environmental education and interpretation. We will review and update the CCP at least every 15 years in accordance with the Refuge Administration Act.
We evaluated four alternatives for managing Deer Flat Refuge; Alternative 2 is our preferred alternative. Based on feedback on the draft CCP/EIS, some modifications have been made to Alternative 2 and are summarized below. A full description of all alternatives, including changes to our preferred alternative, can be found in the final CCP/EIS at the sources identified in
A youth waterfowl hunt would be opened in all waterfowl hunt zones.
Ice fishing would be allowed in Fishing Areas A and B within 200 yards of the dams, subject to areas posted by the Bureau of Reclamation.
Sailing regattas would be allowed on Lake Lowell in April and May with stipulations.
Swimming would be encouraged in designated areas, and would continue to be allowed elsewhere in Lake Lowell with stipulations.
Organized group events (
Under Alternative 2, we would emphasize connecting families to nature by providing access to new recreational facilities and programs on the Refuge such as developing a visitor contact station, new trails, and a platform for fishing and wildlife observation at the Lower Dam Recreation Area. Nearly all existing upland and on-water recreation would continue. Fishing access would be promoted, and wildlife interpretation would be emphasized and integrated into all Refuge visitor activities. Other compatible wildlife-dependent public uses would continue, including wildlife observation, and waterfowl and upland game hunting. Gotts Point would be opened for automobiles after we complete a law enforcement cooperative agreement with Canyon County. Activities would be managed to protect wildlife, reduce conflicts between uses, and increase safety.
Alternative 2 also includes protections and enhancements for Refuge wildlife. Seasonally closed areas and no-wake zones on Lake Lowell would protect heron rookeries, eagle nests, and grebe nesting colonies, and shoreline feeding and nesting habitats. Motorized boats would be allowed in no-wake zones, at speeds that do not create a wake (generally 5 mph or slower). The lake would continue to be closed October 1–April 14 each year. The no-wake zone on the lake's southeast end would expand to include Gotts Point. A no-wake zone would be added in the Narrows, and a 200-yard no-wake zone would be added along the lake's south side between Parking Lots 1 and 8.
Habitat enhancement would increase. We would implement an Integrated Pest Management (IPM) plan to conduct more intensive and targeted invasive species removal and vegetation manipulation. We would increase wildlife and habitat research and assessments, to build a strong scientific base for future management decisions.
On the Snake River Islands Unit, we would increase wildlife inventory and monitoring under Alternative 2, and implement an IPM plan to control invasive species and restore habitat. We would prioritize the islands' management needs and manage accordingly. Management techniques would include prescribed fire and aerial application of herbicide and seed. Island closure dates would be adjusted to better protect nesting geese, wading birds, gulls, and terns.
Existing compatible public uses provided on the islands, including wildlife observation, deer hunting, and hunting for upland species and waterfowl, would continue on more than 1,200 acres. Most of the islands would be open for off-trail/free-roam activities June 15-January 31, including shoreline fishing. Heron and gull-nesting islands (4–6 islands) would be open for free-roam activities July 1-January 31.
Review the CCP/EIS at the following libraries, and sources under
Caldwell Public Library, 1010 Dearborn St, Caldwell, ID 83605.
Homedale Public Library, 125 W Owyhee Ave, Homedale, ID 83628.
Lizard Butte District Library, 111 3rd Ave W, Marsing, ID 83639.
Nampa Public Library, 101 11th Ave S, Nampa, ID 83651.
Payette Public Library, 24 S 10th St, Payette, ID 83661.
Ada County District Library, 10664 W Victory Rd, Boise, ID 83709.
We received comments on the draft CCP/EIS from 170 agencies, organizations, and individuals, and a petition with 426 signatures. We addressed the comments in the final CCP/EIS by making changes and clarifications to Alternative 2 as appropriate. The changes are explained in the final CCP/EIS, in Appendix H Public Involvement.
Bureau of Land Management, Interior.
Public land order.
This order extends Public Land Order No. 7130 for an additional 20-year period. This extension is necessary to continue to protect and reserve the lands for the U.S. Fish and Wildlife Service Grays Lake Refuge Headquarters in Bonneville County, Idaho, which would otherwise expire on March 30, 2015.
Effective Date: March 31, 2015.
Jeff Cartwright, BLM Idaho State Office, 208–962–3680. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 to reach the Bureau of Land Management contact. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The purpose for which the withdrawal was first made requires this extension in order to continue to protect and reserve the lands for use as an administrative site—the U.S. Fish and Wildlife Service Grays Lake Refuge Headquarters. The withdrawal extended by this order will expire on March 30, 2035, unless, as a result of a review conducted prior to the expiration date pursuant to Section 204(f) of the Federal Land Policy and Management Act of 1976, (43 U.S.C. 1714 (f)), the Secretary determines that the withdrawal shall be further extended.
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, (43 U.S.C. 1714), it is ordered as follows:
Public Land Order No. 7130 (60 FR 16585 (1995)), which transferred jurisdiction of 37.5 acres of public land withdrawn from settlement, sale, location or entry under the public land laws, including the United States mining laws, but not the mineral leasing laws, from the U.S. Forest Service to the U.S. Fish and Wildlife in order to protect the Grays Lake Refuge Headquarters, is hereby extended until March 30, 2035.
Bureau of Ocean Energy Management (BOEM), Interior.
Notice of Availability of a Final Second Supplemental Environmental Impact Statement.
BOEM is announcing the availability of a Final Second Supplemental Environmental Impact Statement (SEIS) for the Chukchi Sea Planning Area, Outer Continental Shelf (OCS) Oil and Gas Lease Sale 193 (Lease Sale 193). The Final Second SEIS (OCS EIS/EA BOEM 2014–669) provides new analysis in accordance with the United States District Court for the District of Alaska (District Court) Order remanding Lease Sale 193 to BOEM. The District Court's order instructs BOEM to address the deficiency in the 2007 Final EIS (OCS EIS/EA MMS 2007–026) identified by the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit). The Ninth Circuit held that the EIS supporting the decision to hold Lease Sale 193 arbitrarily relied on a one billion barrel oil production estimate. The Final Second SEIS provides a revised exploration and development scenario and an accompanying analysis of potential impacts of the proposed action alternatives. The Final Second SEIS identifies Alternative IV (Corridor II Deferral) as BOEM's preferred alternative.
Chukchi Sea OCS Oil and Gas Lease Sale 193 was held in February 2008. The Minerals Management Service (MMS) (predecessor to BOEM) received high bids totaling approximately $2.7 billion and issued 487 leases. The lease sale decision was challenged in the District Court. In 2010, the District Court remanded the case to the agency to remedy deficiencies pertaining to the agency's compliance with the National Environmental Policy Act (NEPA). BOEM released a Final SEIS in August 2011 and the Secretary of the Interior reaffirmed the lease sale in October 2011. In February 2012, the District Court ruled the Department of the Interior had met its NEPA obligations on remand. In April 2012, the plaintiffs appealed the District Court's decision to the Ninth Circuit.
In a January 22, 2014, opinion, the Ninth Circuit found MMS' “reliance in
BOEM has prepared a Final Second SEIS for Lease Sale 193 in accordance with the April 24, 2014, remand order of the District Court. The Final Second SEIS addresses the deficiencies identified in the Ninth Circuit opinion by analyzing the reasonably foreseeable environmental effects of the full range of likely production if oil production were to occur.
The Final Second SEIS is available on BOEM's Web site at
This Notice of Availability of the Final Second SEIS is in compliance with NEPA, as amended (42 U.S.C. 4231
Michael Routhier, Program Analysis Officer and Project Manager, BOEM, Alaska OCS Region, 3801 Centerpoint Drive, Suite 500, Anchorage, Alaska 99503–5823 or by telephone at (907) 334–5200.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review the presiding administrative law judge's (“ALJ”) initial determination (“ID”) (Order No. 53) granting a motion of complainants InterDigital Communications Corp. of King of Prussia, Pennsylvania and InterDigital Technology Corp. of Wilmington, Delaware (collectively, “InterDigital”) to substitute parties. The Notice of Investigation is amended accordingly.
Megan M. Valentine, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708–2301. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205–2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted Inv. No. 337–TA–613 on September 11, 2007, based on a complaint filed by InterDigital on August 7, 2007. 72 FR 51838 (Sept. 11, 2007). The complaint, as amended, alleged violations of section 337 of the Tariff Act of 1930, as amended, (19 U.S.C. 1337) (“section 337”) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain 3G mobile handsets and components thereof by reason of infringement of certain claims of U.S. Patent Nos. 7,117,004; 7,190,966 (“the '966 patent”); 7,286,847 (“the '847 patent”); and 6,973,579. The Notice of Investigation named Nokia Corporation of Espoo, Finland and Nokia Inc. of Irving, Texas (collectively, “Nokia”) as respondents.
On August 14, 2009, the ALJ issued his final ID, finding no violation of section 337. On October 16, 2009, the Commission determined to review the final ID in part and terminated the investigation with a finding of no violation. 74 FR 55068 (Oct. 26, 2009).
InterDigital timely appealed the Commission's final determination of no violation of section 337 as to all of the asserted claims of the '966 patent and claim 5 of the '847 patent to the U.S. Court of Appeals for the Federal Circuit. On August 1, 2012, the Federal Circuit reversed the Commission's construction of two claim limitations found in the appealed patents-in-suit, reversed the Commission's determination of non-infringement as to the asserted claims of those patents, and remanded to the Commission for further proceedings.
On February 12, 2014, the Commission issued a Notice, Order, and Opinion deciding certain aspects of the investigation and remanding other aspects to the chief administrative law judge (“ALJ”). 79 FR 9277 (Feb. 18, 2014);
On December 1, 2014, InterDigital filed a motion to substitute InterDigital Communications, Inc. for InterDigital Communications Corp. The motion stated that the Commission investigative
On January 14, 2014, the ALJ issued the subject ID, granting InterDigital's motion. On January 22, 2015, Respondents filed a petition for review of the subject ID. On January 29, 2015, InterDigital and the IA each filed responses to the petition. On February 10, 2015, Respondents filed a motion for leave to reply to InterDigital's response. On February 11, 2015, InterDigital filed an opposition to the motion.
The Commission has determined not to review the subject ID. The Commission has further determined to not grant Respondents' motion for leave to file a reply.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Bureau of Justice Statistics, Department of Justice.
30-day notice.
The Department of Justice, DOJ, Office of Justice Programs, Bureau of Justice Statistics, will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. This proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 days until March 23, 2015.
If you have additional comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Devon Adams, Bureau of Justice Statistics, 810 Seventh St. NW., Washington, DC 20531 (email:
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
(1)
(2)
(3)
(4)
(5)
(6)
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E.405B, Washington, DC 20530.
Cancellation.
The Legal Services Corporation's Board of Directors and Finance Committee meetings scheduled for February 19, 2015 at 4:00 p.m., EDT, have been canceled. These meetings were noticed in the Friday, February 13, 2015 issue of the
Katherine Ward, Executive Assistant to the Vice President & General Counsel, at (202) 295–1500. Questions may be sent by electronic mail to
On December 24, 2014, the operating committee (“Operating Committee” or “Committee”)
The proposed amendment was published for comment in the
Currently, Section VIII(B) (Transaction Reports) of the Nasdaq/UTP Plan provides that “Each Participant shall, during the time it is open for trading, be responsible promptly to collect and transmit to the Processor Transaction Reports in Eligible Securities executed in its Market by means prescribed herein. . . . All such Transaction Reports shall be transmitted to the Processor within 90 seconds after the time of execution of the transaction. Transaction Reports transmitted beyond the 90-second period shall be designated as “late” by the appropriate code or message.”
The amendment proposes to shorten the maximum time within which Participants must report trades from 90 seconds to 10 seconds, subject to the Participants' obligation to report trades as soon as practicable. It would now require the Participants to “transmit all Transaction Reports as soon as practicable, but not later than 10 seconds, after the time of execution.” The amendment would also require each Participant to establish and maintain collection and reporting procedures and facilities reasonably designed to comply with the reporting requirement. This would harmonize the UTP Plan with the amended transaction reporting requirement under the CTA Plan.
After careful review, the Commission finds that the proposed amendment to the Plan is consistent with the requirements of the Act and the rules and regulations thereunder,
The proposal is consistent with Section 11A(a)(1)(C)(iii) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission.
Notice of roundtable discussion; request for comment.
The Securities and Exchange Commission will host a roundtable to explore ways to improve the proxy voting process. The roundtable will focus on universal proxy ballots and retail participation in the proxy process. Roundtable panelists will discuss the state of contested director elections and whether changes should be made to the federal proxy rules to facilitate the use of universal proxy ballots by management and proxy contestants. In addition, panelists will discuss the state law, logistical and disclosure issues presented by a possible universal proxy ballot process. Roundtable panelists also will discuss strategies for increasing retail shareholder participation in the proxy process, including how technology might affect retail participation and whether the format of disclosure could be improved to increase the engagement of shareholders and how the mechanics of voting could be improved to affect retail shareholder participation.
The roundtable discussion will be held in the multi-purpose room of the Securities and Exchange Commission headquarters at 100 F Street NE., Washington, DC, on February 19, 2015 from 9:30 a.m. to approximately 1:00 p.m. The public is invited to observe the roundtable discussion. Seating will be available on a first-come, first-serve basis. The roundtable discussion will also be available via webcast on the Commission's Web site at
The roundtable discussion will take place on February 19, 2015. The Commission will accept comments regarding issues addressed at the roundtable until March 31, 2015.
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.
Christina Chalk, Senior Special Counsel, Division of Corporation Finance, at 202–551–3440, or Raymond Be, Special Counsel, Division of Corporation Finance, at 202–551–3500, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.
By the Commission.
On December 24, 2014, the Consolidated Tape Association (“CTA”) Plan participants (collectively the “Participants”)
Currently, Section VIII(a) (Responsibility of Exchange Participants) of the CTA Plan provides that each Participant will “(i) report all last sale prices relating to transactions in Eligible Securities as promptly as possible, (ii) establish and maintain collection and reporting procedures and facilities such as to assure that under normal conditions not less than 90% of such last sale prices will be reported within that period of time (not in excess of one and one-half minutes) after the time of execution as may be determined by CTA from time to time in light of experience, and (iii) designate as “late” any last sale price not collected and reported in accordance with the above-referenced procedures.”
The Amendment proposes to shorten the maximum time within which Participants must report trades from 90 seconds to 10 seconds, subject to the Participants' obligation to report trades as soon as practicable. It also proposes to remove the qualifier that called for trade reports to meet the time requirement not less than 90 percent of the time under normal conditions.
After careful review, the Commission finds that the proposed Amendment to the Plan is consistent with the requirements of the Act and the rules
The proposal is consistent with Section 11A(a)(1)(C)(iii) of the Act,
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 11, 2014, The NASDAQ Stock Market LLC (“Nasdaq” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
In its filing, Nasdaq stated that it processes between 200 and 300 applications each year from companies seeking to list securities on Nasdaq. According to the Exchange, while most applicants meet the listing requirements (or are prepared to take action to meet those requirements before listing) in some cases a company does not meet the requirements and is not willing, or able, to comply. Nasdaq may also deny a listing application based on public interest concerns even though the company meets all quantitative listing requirements.
According to Nasdaq, investors view a company's decision to seek initial listing on the Exchange as a positive development, and companies often publicize their intention to apply for listing.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
The Commission notes that full and fair disclosure of information by companies is of critical importance to financial markets and the investing public. According to the Exchange, investors view a company's decision to seek initial listing on the Exchange as a positive development, and companies often publicize their intention to apply for listing. The listing of a company on a national securities exchange such as Nasdaq provides benefits including, among others, potential for increased stock liquidity and capital raising benefits.
The Commission believes that the public, including potential future investors, would find a denial of a company's listing application, just as important as the decision to seek an exchange listing which, as noted by Nasdaq, is often publicized. The significance of a denial of listing is also underscored by the existence of both the right to appeal the denial on Nasdaq and the right to obtain Commission review of such appeals. Nasdaq rules provide, as noted above, for due process to appeal a denial of listing.
The Commission therefore believes that the proposed rule change will help provide transparency to future, as well as existing, investors about the status of a company's listing application. The Commission also believes that Nasdaq's proposal to require that such disclosure be made by press release, or other Regulation FD compliant manner, will permit companies to disseminate this important information to the public in a broad and inclusive manner and should help to ensure for broad public access to the denial of listing determination and the reasons for the denial.
As described above, the proposal will also clarify in Nasdaq's rules that a company may withdraw its application for initial listing at any time during the review process.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On December 16, 2014, National Stock Exchange, Inc. (“NSX” or the “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1)
The Commission has reviewed carefully the proposed rule change and finds that the proposed rule change is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
Currently, the Exchange is a wholly-owned subsidiary of the CBOE Stock
The Exchange is, and will remain, registered as a national securities exchange under section 6 of the Act
The ownership of NSX Holdings, as the new holding company of the Exchange, will be divided among two categories of shareholders.
The second category of shareholders of NSX Holdings consists of two affiliated entities: Thor Investment Holdings LLC (“Thor”) and TIP–1 LLC (“TIP–1”), each a Delaware limited liability company.
The Exchange notes that there is no commonality or overlap between the 12 individual investors owning approximately 64% of the outstanding shares of NSX Holdings and the individual members of Thor and TIP–1 which own the remaining approximately 36% of the outstanding equity of NSX Holdings.
With respect to voting rights, Thor will have the ability to exercise TIP–1's voting rights in NSX Holdings, such that Thor will have the ability to exercise an approximately 36% voting interest of NSX Holdings (Thor's approximately 16% plus TIP–1's approximately 20%).
The Exchange currently has one affiliated entity, NSX Securities LLC (“NSX Securities”). Pursuant to Exchange Rule 2.11(a), NSX Securities provides the outbound routing of orders from the Exchange to other trading centers. NSX Securities operates as a facility (as defined in section 3(a)(2) of the Act)
Section 19(b) of the Act and Rule 19b–4 thereunder require an SRO to file proposed rule changes with the Commission. Although NSX Holdings is not an SRO, certain provisions of its proposed certificate of incorporation and bylaws, are rules of the Exchange, if they are stated policies, practices, or interpretations, as defined in Rule 19b–4 under the Act, and must be filed with the Commission pursuant to section 19(b)(4) of the Act and Rule 19b–4 thereunder. Accordingly, the Exchange filed with the Commission the following documents in connection with the Transaction: (1) The proposed Second Amended and Restated Certificate of Incorporation of NSX Holdings (the “NSX Holdings A&R Certificate”); (2) the proposed By-laws of NSX Holdings (the “NSX Holdings By-laws”); (3) the proposed Second Amended and Restated Certificate of Incorporation of NSX (the “Exchange A&R Certificate”); and (4) the proposed Third Amended and Restated NSX By-laws (the “Exchange A&R By-laws”).
The NSX Holdings A&R Certificate includes certain restrictions on the ability to own and vote shares of stock. These limitations are intended to prevent a stockholder from exercising undue control over the operation of NSX Holdings, and in turn, over the operation of the Exchange. These limitations are generally consistent with ownership and voting limits approved by the Commission for other SROs,
For example, the NSX Holdings A&R Certificate provides that, subject to certain exceptions, no Person,
Because the Exchange anticipates that one shareholder will own beneficially more than 40% of the outstanding shares of NSX Holdings at the Closing, the Exchange has proposed that a Person (either alone or with their Related Persons) who exceeds the Concentration Limitation as of the filing date of the NSX Holdings A&R Certificate shall be exempt from the Concentration Limitation. The exemption shall not extend beyond May 19, 2015.
Pursuant to NSX Holdings A&R Certificate, Article Fourth, section C(i)(a), the Concentration Limitation applies unless and until: (i) A Person (either alone or with its Related Persons) intending to acquire such ownership shall have delivered to the Board of Directors of NSX Holdings (the “Holdings Board”) a notice in writing, not less than 45 days (or such shorter period as the Holdings Board shall expressly consent to) prior to the acquisition of any shares that would cause such Person (either alone or with its Related Persons) to exceed the Concentration Limitation, of its intention to acquire such ownership; (ii) the Holdings Board shall have resolved to expressly permit such ownership; and (iii) such resolution shall have been filed with the Commission under section 19(b) of the Act and shall have become effective thereunder.
The Exchange has provided for additional safeguards that must be satisfied in the event a Person alone or with their Related Persons seeks an exemption from the Concentration Limitation. For example, the Holdings Board shall not adopt any resolution permitting an exemption from the Concentration Limitation unless the Holdings Board first determines that such acquisition of beneficial ownership by such Person (either alone or with its Related Persons) (i) will not impair any of NSX Holdings' or NSX's ability to discharge its responsibilities under the Act and the rules and regulations thereunder, and is otherwise in the best interests of NSX Holdings and its stockholders; (ii) such acquisition of beneficial ownership by such Person (either alone or with its Related Persons) will not impair the Commission's ability to enforce the Act; and (iii) neither such Person nor any of its Related Persons is subject to any statutory disqualification as defined in section 3(a)(39) of the Act.
The NSX Holdings A&R Certificate further provides that, in making such determinations, the Holdings Board may impose such conditions and restrictions on a Person and its Related Persons owning any shares of stock of NSX Holdings entitled to vote on any matter as it may in its sole discretion deem necessary, appropriate or desirable in furtherance of the objectives of the Act and the governance of NSX Holdings.
The NSX Holdings A&R Certificate also provides for limitations on ownership of shares by ETP Holders of NSX.
With respect to voting limitations, Article Fourth, section B(i) of the NSX Holdings A&R Certificate provides that, notwithstanding any other provisions of that document, no Person (either alone or with its Related Persons) as of any record date for the determination of stockholders entitled to vote on any matter, shall be entitled to vote or cause the voting of shares of stock of NSX Holdings, in person or by proxy or through any voting agreement or other arrangement, to the extent such shares represent in the aggregate more than 20% of the then outstanding votes entitled to be cast on such matter (the “Voting Limitation”). If votes have been cast, in person or by proxy or through any voting agreement or other arrangement, by any Person (either alone or with its Related Persons) in excess of the Voting Limitation, NSX Holdings shall disregard such votes in excess of the Voting Limitation.
The Commission believes that the proposed restrictions on the ownership and voting of members are consistent with the requirements of section 6(b) of the Act. These restrictions are generally consistent with ownership and voting limits approved by the Commission for other SROs.
As described above, following the Closing, NSX Holdings will be the sole stockholder of the Exchange. Although NSX Holdings will not carry out any regulatory functions, its activities with respect to the operation of the Exchange must be consistent with, and must not interfere with, the self-regulatory obligations of the Exchange. The NSX Holdings A&R Certificate and the NSX Holdings By-laws therefore include certain provisions that are designed to maintain the independence of the Exchange's self-regulatory functions, enable the Exchange to operate in a manner that complies with the federal securities laws, including the objectives of sections 6(b)
For example, Article VI of the NSX Holdings By-laws, entitled “SRO Functions of NSX,” governs the conduct of NSX Holdings as the holding company for the Exchange with respect to NSX's status and obligations as a registered national securities exchange and an SRO.
Further, NSX Holdings is required to comply with the federal securities laws, and the rules and regulations thereunder, and must cooperate with the Commission and with NSX pursuant to and to the extent of their respective regulatory authority.
In addition, for so long as NSX remains a registered national securities exchange, the books, records, premises, officers, directors, employees and agents of NSX Holdings shall be deemed to be the books, records, premises, officers, directors, employees and agents of NSX for purposes of and subject to oversight pursuant to the Act.
The NSX Holdings By-laws further provide that NSX Holdings' books and records shall be maintained within the United States and shall be at all times subject to inspection and copying by the Commission and by the Exchange, to the extent that such books and records are related to the administration and operation of the Exchange.
The NSX Holdings A&R Certificate and the NSX Holdings By-laws provide that, to the extent that NSX continues to be controlled, directly or indirectly, by NSX Holdings and to the fullest extent permitted by applicable law, all books and records of the Exchange reflecting confidential information pertaining to the self-regulatory function of the Exchange or its successors (including but not limited to disciplinary matters, trading data, trading practices and audit information) that shall come into the possession of NSX Holdings, shall not be made available other than to those officers, directors, employees and agents of NSX Holdings that have a reasonable need to know the contents thereof, and shall be retained in confidence by NSX Holdings, and the officers, directors, employees and agents of NSX Holdings, and not used for any non-regulatory purposes.
The NSX Holdings A&R Certificate and the NSX Holdings By-laws provide that, for so long as NSX remains a registered national securities exchange, before any amendment to or repeal of any provision of the NSX Holdings A&R Certificate or the NSX Holdings By-laws may be effective, those changes must be submitted to the Exchange Board of Directors, and if the amendment is required to be filed with, or filed with and approved by the Commission pursuant to section 19(b) of the Act,
The Exchange submits that the NSX Holdings A&R Certificate and the NSX Holdings By-laws establish an organizational framework that assures that the Commission and NSX will have regulatory jurisdiction and authority over NSX Holdings and its directors, officers, employees and agents, and will preserve the independence and effectiveness of the Exchange in discharging its self-regulatory responsibilities pursuant to the Act.
The Commission finds that these provisions are consistent with the Act, and that they are intended to assist the Exchange in fulfilling its self-regulatory obligations and in administering and complying with the requirements of the Act. The Commission also notes that, even in the absence of these provisions, under section 20(a) of the Act,
Following the completion of the Transaction, the board of directors of the Exchange will continue to be the
In connection with the Closing, the steps to transition the membership on the Exchange Board from the current directors to the post-Closing directors will conform to the requirements set forth in Article III, section 3.7 of the Exchange A&R By-laws. Furthermore, the Exchange A&R By-laws provides that any vacancy occurring in a committee shall be filled by the Chairman of the Board for the remainder of the term, with the approval of the Exchange Board.
The Commission finds that these provisions are consistent with the Act, and that they are intended to assist the Exchange in fulfilling its self-regulatory obligations and in administering and complying with the requirements of the Act.
In connection with the completion of the Transaction, the Exchange proposes certain amendments in the Exchange A&R Certificate and the Exchange A&R By-laws. In particular, the Exchange proposes to delete the language in Paragraph Fourth of the Exchange A&R Certificate that provides that the Exchange shall at all times be wholly owned by CBSX and replace that provision with one requiring that the Exchange at all times be wholly owned by NSX Holdings.
In addition, with respect to the Exchange A&R By-laws, the Exchange proposes to replace all references to “CBSX” with references to “NSX Holdings.”
In addition, the Exchange proposes to delete section 10.1(b) in the Exchange A&R By-laws, which requires that for so long as CBSX controls the Exchange, the Exchange shall promptly inform the CBSX board of directors, in writing, in the event that the Exchange has, or experiences, a deficiency related to its ability to carry out its obligations as a national securities exchange under the Act, including if the Exchange does not have or is not appropriately allocating such financial, technological, technical and personnel resources as may be necessary or appropriate for the Exchange to meet its obligations under the Act.
Finally, the Exchange is proposing certain clarifying amendments, and other non-substantive conforming amendments to the Exchange A&R By-laws that are consistent with the changes described above.
The Commission believes that the proposed changes to the organizational documents of the Exchange are consistent with the Act, and that they are intended to align the Exchange's governance and organizational structure with the proposed ownership by NSX Holdings.
For the foregoing reasons, the Commission finds that the proposed rule change is consistent with the Act and the rules and regulations thereunder applicable to a national securities exchange.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (the
The Exchange proposes to amend Phlx Rule 507, entitled “Application for Approval as an SQT or RSQT or RSQTO and Assignment in Options” to increase the number of Remote Streaming Quote Traders (“RSQTs”) that may be affiliated with a Remote Streaming Quote Trader Organization (“RSQTOs”).
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend Phlx Rule 507, entitled “Application for Approval as an SQT or RSQT or RSQTO and Assignment in Options,” to increase the number of RSQTs that may be affiliated with RSQTOs. RSQTs are one of several types of Registered Options Traders (“ROTs”) on the Exchange. ROTs are market makers that include Streaming Quote Traders (“SQTs”),
Rule 507 is one of the numerous rules administered by the Exchange that deal with allocation and assignment of securities. These Rules generally describe the process for: Applying for an appointment as a specialist; allocating classes of options to specialist units and individual specialists; applying for an appointment as an SQT or RQT; as well as continuing performance obligations. The Rules also indicate, among other things, under what circumstances new allocations are made to specialists and assignments are determined for SQTs.
The Exchange is not proposing to amend the process or procedure for applying to act as a market maker on the Exchange nor the obligations or performance evaluations that are conducted once appointed. The Exchange proposes to amend Rule 507(a) to increase the number of RSQTs that may be affiliated with an RSQTO from three to five RSTQs. The Exchange initially selected three RSQTs when the concept of an RSQTO was adopted because the Exchange believed that up to three RSQTs for each RSQTO organization would strike a proper balance with respect to the anticipated increase to support quoting and trading options in light of competition. The RSQTO concept was initially adopted in 2013.
The Exchange believes that the proposed rule change increasing the number of RSQTs that may be affiliated with RSQTOs will encourage competition, create additional trading opportunities and outlets and increase the depth of markets.
The Exchange is also proposing to delete rule text in Rule 507 related to RSQTO conversions. The rule text was originally adopted to provide guidance as to the initial manner and timeframe within which members were required to notify the Exchange of the names of the affiliated RSQTs. This language is no longer necessary and the Exchange proposes to delete the rule text.
The Exchange believes that its proposal is consistent with section 6(b) of the Act
The Exchange believes that this proposal does not engender unfair discrimination among specialists, specialist units, SQTs and RSQTs. This proposal to amend Rule 507 will be equally applicable to all members and member organizations at the Exchange. Increasing the number of RSQTs associated with an RSQTO is pro-competitive, because it adds depth and liquidity to the Exchange's markets by permitting additional participants to compete on the Exchange.
The Exchange believes that deleting the language concerning the RSQTO conversion period, which was initially implemented to provide a timeframe to permit member organizations to provide notification to the Exchange of up to three affiliated RSQTs, will clarify the Rule text by removing this language which is no longer necessary and is outdated.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the proposal further promotes intra-market competition on the Exchange which should lead to tighter, more efficient markets to the benefit of market participants including public investors that engage in trading and hedging on the Exchange, and thereby make the Exchange a desirable market as compared to other options exchanges and therefore promoted inter-market competition.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to section 19(b)(3)(A)(ii) [sic] of the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to list and trade the shares of the following under NYSE Arca Equities Rule 8.600 (“Managed Fund Shares”): Innovator IBD® 50 Fund. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to list and trade shares (“Shares”) of the following under NYSE Arca Equities Rule 8.600, which governs the listing and trading of Managed Fund Shares:
Commentary .06 to Rule 8.600 provides that, if the investment adviser to the investment company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser shall erect a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition and/or changes to such investment company portfolio. In addition, Commentary .06 further requires that personnel who make decisions on the open-end fund's portfolio composition must be subject to procedures designed to prevent the use and dissemination of material nonpublic information regarding the open-end fund's portfolio.
According to the Registration Statement, the investment objective of the Fund will be to seek long-term capital appreciation. Under normal circumstances,
The Index is a computer-generated stock index published by Investor's Business Daily® (“IBD®”). IBD® uses proprietary fundamental and technical ratings to compile what IBD® considers the 50 leading growth companies that trade on U.S. national securities exchanges. Companies included in the Index must meet minimum earnings, sales, profit margin, volume and technical requirements. Companies meeting these requirements are included in the Index on a price-weighted basis. This means that stocks with higher prices receive a greater weight in the Index. The Index is rebalanced on the last day of each trading week after the U.S. stock market closes and is published by IBD® on its Web site,
According to the Registration Statement, unlike the Index's price-weighted basis, the Fund will invest in the companies included in the Index on a conviction basis. This means that the Fund's portfolio manager will overweight the higher ranked companies in the Index and underweight the lower ranked companies. The Fund's portfolio manager anticipates that these higher ranked companies may each represent as much as approximately 3.5% of the Fund's portfolio at the time of investment while the lower ranked companies may each represent as little as approximately 0.5% of the Fund's portfolio at the time of investment.
Under normal circumstances, the Fund will invest in U.S. exchange-traded equities. Typically, the Fund will hold U.S. exchange-traded common stocks as well as U.S. exchange-traded master limited partnerships (“MLPs”),
According to the Registration Statement, while the Fund, under normal circumstances, will invest at least 80% of its net assets in securities described above, the Fund may invest up to 20% of its net assets in the following securities.
The Fund may invest in money market securities (the types of which are discussed below) for liquidity and cash management purposes or if the Adviser or Sub-Adviser determines that securities meeting the Fund's investment objective and policies are not otherwise readily available for purchase. Money market securities include (i) short-term U.S. government securities; (ii) commercial paper
The Fund may invest in securities of other investment companies (other than BDCs), including shares of the following: (1) Exchange-traded funds (“ETFs”),
According to the Registration Statement, the Fund will be classified as a diversified investment company under the 1940 Act.
The Fund intends to qualify as a “regulated investment company” for purposes of the Internal Revenue Code of 1986.
According to the Registration Statement, the Fund will not invest 25% or more of the Fund's net assets in securities of issuers in any one industry or group of industries (other than securities issued or guaranteed by the U.S. government or any of its agencies or instrumentalities or securities of other investment companies), except that the Fund may invest 25% or more of its net assets in securities of issuers in the same industry to approximately the same extent that the Index concentrates in the securities of a particular industry or group of industries.
The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid assets.
The Fund will not invest in options, futures contracts or swaps agreements. The Fund's investments will be consistent with its investment objective and will not be used to enhance leverage. The Fund will not invest in leveraged or inverse leveraged (
According to the Registration Statement, the Administrator will calculate the Fund's net asset value (“NAV”) at the close of regular trading (ordinarily 4:00 p.m. Eastern time) every day the New York Stock Exchange (“NYSE”) is open. The NAV for one Fund Share will be the value of that Share's portion of all of the net assets of the Fund. In calculating its NAV, the Fund generally will value its investment portfolio at market price. If market prices are not readily available or the Fund reasonably believes that they are unreliable, such as in the case of a security value that has been materially affected by events occurring after the relevant market closes, the Fund will price those securities at fair value as determined using methods approved by the Fund's Board of Trustees (“Board”).
In computing the Fund's NAV, the Fund's securities holdings will be valued based on their last readily available market price. Price information on exchange-listed securities, including common stocks, ETFs, unit investment trusts, closed-end investment companies, ADRs, MLPs, REITs, royalty trusts and BDCs will be valued at market value, which will generally be determined using the last reported official closing or last trading price on the exchange or market on which the security is primarily traded at the time of valuation or, if no sale has occurred, at the last quoted bid price on the primary market or exchange on which they are traded. Money market mutual funds will be valued at NAV. Other money market securities generally will be valued on the basis of independent pricing services or quotes obtained from brokers and dealers.
Other portfolio securities and assets for which market quotations are not readily available or determined to not represent the current fair value will be valued based on fair value as determined in good faith in accordance with procedures adopted by the Board and in accordance with the 1940 Act.
According to the Registration Statement, the Fund will issue and sell Shares only in “Creation Unit” size at the NAV next determined after receipt, on any business day, of an order in proper form. A Creation Unit consists of 25,000 Shares. The size of a Creation Unit is subject to change.
The consideration for purchase of Creation Units of the Fund generally will consist of the in-kind deposit of a designated portfolio of equity securities—the “Deposit Securities”—per each Creation Unit constituting a substantial replication, or a representation, of the securities included in the Fund's portfolio and an
The Cash Component (also referred to as the “Balancing Amount”) serves the function of compensating for any differences between the NAV per Creation Unit and the Deposit Amount (as defined below). The Cash Component is an amount equal to the difference between the NAV of the Fund Shares (per Creation Unit) and the “Deposit Amount”—an amount equal to the market value of the Deposit Securities. If the Cash Component is a positive number (
The Custodian, through the National Securities Clearing Corporation (“NSCC”), will make available on each business day, prior to the opening of business on the Exchange (currently 9:30 a.m., Eastern time), the list of the names and the required number of shares of each Deposit Security to be included in the current Fund Deposit (based on information at the end of the previous business day) for the Fund. Such Fund Deposit will be applicable, subject to any adjustments as described below, in order to effect creations of Creation Units of the Fund until such time as the next announced composition of the Deposit Securities is made available.
The identity and number of shares of the Deposit Securities required for a Fund Deposit for the Fund will change as rebalancing adjustments and corporate action events are reflected from time to time by the Sub-Adviser to the Fund with a view to the investment objective of the Fund. In addition, the Trust reserves the right to permit or require the substitution of an amount of cash—
In addition to the list of names and numbers of securities constituting the current Deposit Securities of a Fund Deposit, the Administrator, through the NSCC, also will make available on each business day, the estimated Cash Component, effective through and including the previous business day, per outstanding Creation Unit of the Fund.
To be eligible to place orders with the Distributor to create a Creation Unit of the Fund, an entity must be (i) a “Participating Party,”
All orders to create Creation Units must be placed for one or more Creation Unit size aggregations of at least 25,000 Shares. All orders to create Creation Units must be received by the Distributor no later than 3:00 p.m., Eastern Time, an hour earlier than the close of the regular trading session on the Exchange (ordinarily 4:00 p.m., Eastern Time) (“Closing Time”), in each case on the date such order is placed in order for the creation of Creation Units to be effected based on the NAV of Shares of the Fund as next determined on such date after receipt of the order in proper form.
According to the Registration Statement, Shares may be redeemed only in Creation Units at their NAV next determined after receipt of a redemption request in proper form by the Fund through the Administrator and only on a business day. Orders to redeem Creation Units must be received by the Administrator not later than 3:00 p.m., Eastern Time.
With respect to the Fund, the Administrator, through the NSCC, will make available immediately prior to the opening of business on the Exchange (currently 9:30 a.m., Eastern Time) on each business day, the list of the names and number of shares of the Fund's portfolio securities (“Fund Securities”) that will be applicable (subject to possible amendment or correction) to redemption requests received in proper form on that day. Fund Securities received on redemption may not be identical to Deposit Securities which are applicable to creations of Creation Units.
Unless cash redemptions are available or specified for the Fund, the redemption proceeds for a Creation Unit generally will consist of Fund Securities—as announced by the Administrator on the business day of the request for redemption received in proper form—plus cash in an amount equal to the difference between the NAV of the Shares being redeemed, as next determined after receipt of a request in proper form, and the value of the Fund Securities (the “Cash Redemption Amount”), less a redemption transaction fee. In the event that the Fund Securities have a value greater than the NAV of the Shares, a compensating cash payment equal to the differential is required to be made by or through an Authorized Participant by the redeeming shareholder.
If it is not possible to effect deliveries of the Fund Securities, the Fund may in its discretion exercise its option to redeem such shares in cash, and the redeeming beneficial owner will be required to receive its redemption proceeds in cash. In addition, an investor may request a redemption in cash which the Fund may, in its sole discretion, permit. In either case, the investor will receive a cash payment equal to the NAV of its Shares based on the NAV of Shares of the Fund next determined after the redemption request is received in proper form (minus a redemption transaction fee and additional charge for requested cash redemptions to offset the Trust's brokerage and other transaction costs associated with the disposition of Fund Securities). The Fund may also, in its sole discretion, upon request of a shareholder, provide such redeemer a portfolio of securities which differs from the exact composition of the Fund Securities but does not differ in NAV.
Redemptions of Shares for Fund Securities will be subject to compliance with applicable federal and state securities laws and the Fund (whether or not it otherwise permits cash redemptions) reserves the right to redeem Creation Units for cash to the extent that the Fund could not lawfully deliver specific Fund Securities upon redemptions or could not do so without first registering the Fund Securities under such laws. An Authorized
The right of redemption may be suspended or the date of payment postponed with respect to the Fund (1) for any period during which the NYSE is closed (other than customary weekend and holiday closings); (2) for any period during which trading on the NYSE is suspended or restricted; (3) for any period during which an emergency exists as a result of which disposal of the Shares of the Fund or determination of the Shares' NAV is not reasonably practicable; or (4) in such other circumstance as is permitted by the Commission.
The Fund's Web site (
On a daily basis, the Adviser, on behalf of the Fund, will disclose on the Fund's Web site the following information regarding each portfolio holding, as applicable to the type of holding: Ticker symbol, CUSIP number or other identifier, if any; a description of the holding (including the type of holding); the identity of the security, index, or other asset or instrument underlying the holding, if any; maturity date, if any; coupon rate, if any; effective date, if any; market value of the holding; and the percentage weighting of the holding in the Fund's portfolio. The Web site information will be publicly available at no charge.
In addition, a basket composition file, which includes the security names and share quantities (as applicable) required to be delivered in exchange for Fund Shares, together with estimates and actual cash components, will be publicly disseminated daily prior to the opening of the NYSE via the NSCC. The basket will represent one Creation Unit of the Fund.
Investors can also obtain the Fund's Statement of Additional Information (“SAI”), the Fund's Shareholder Reports, and its Form N–CSR and Form N–SAR, filed twice a year. The Trust's SAI and Shareholder Reports will be available free upon request from the Trust, and those documents and the Form N–CSR and Form N–SAR may be viewed on-screen or downloaded from the Commission's Web site at
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4 a.m. to 8 p.m. Eastern Time in accordance with NYSE Arca Equities Rule 7.34 (Opening, Core, and Late Trading Sessions). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in NYSE Arca Equities Rule 7.6, Commentary .03, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca
The Shares will conform to the initial and continued listing criteria under NYSE Arca Equities Rule 8.600. Consistent with NYSE Arca Equities Rule 8.600(d)(2)(B)(ii), the Adviser, as the Reporting Authority, will implement and maintain, or be subject to, procedures designed to prevent the use and dissemination of material non-public information regarding the actual components of the Fund's portfolio. The Exchange represents that, for initial and/or continued listing, the Fund will be in compliance with Rule 10A–3
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances, administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares and underlying exchange-traded equity securities (including common stocks, ETFs, unit investment trusts, closed-end investment companies, ADRs, MLPs, REITs, royalty trusts and BDCs) with other markets and other entities that are members of the Intermarket Surveillance Group (“ISG”), and FINRA, on behalf of the Exchange, may obtain trading information regarding trading in the Shares, underlying exchange-traded equity securities, from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares and underlying exchange-traded equity securities from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement.
Not more than 10% of the net assets of the Fund in the aggregate invested in exchange-traded equity securities shall consist of equity securities whose principal market is not a member of the ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
Prior to the commencement of trading, the Exchange will inform its Equity Trading Permit Holders in an Information Bulletin (“Bulletin”) of the special characteristics and risks associated with trading the Shares. Specifically, the Bulletin will discuss the following: (1) The procedures for purchases and redemptions of Shares in Creation Unit aggregations (and that Shares are not individually redeemable); (2) NYSE Arca Equities Rule 9.2(a), which imposes a duty of due diligence on its Equity Trading Permit Holders to learn the essential facts relating to every customer prior to trading the Shares; (3) the risks involved in trading the Shares during the Opening and Late Trading Sessions when an updated Portfolio Indicative Value will not be calculated or publicly disseminated; (4) how information regarding the Portfolio Indicative Value is disseminated; (5) the requirement that Equity Trading Permit Holders deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (6) trading information.
In addition, the Bulletin will reference that the Fund is subject to various fees and expenses described in the Registration Statement. The Bulletin will discuss any exemptive, no-action, and interpretive relief granted by the Commission from any rules under the Act. The Bulletin will also disclose that the NAV for the Shares will be calculated after 4:00 p.m. Eastern Time each trading day.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.600. The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares and underlying exchange-traded equity securities (including common stocks, ETFs, unit investment trusts, closed-end investment companies, ADRs, MLPs, REITs, royalty trusts and BDCs) with other markets and other entities that are members of ISG, and FINRA, on behalf of the Exchange, may obtain trading information regarding trading in the Shares and underlying exchange-traded equity securities from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares and underlying exchange-traded equity securities with other markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. Not more than 10% of the net assets of the Fund in the aggregate invested in exchange-traded equity securities shall consist of equity securities whose principal market is not a member of the ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. In addition, a large amount of information will be publicly available regarding the Fund and the Shares, thereby promoting market transparency. Quotation and last sale information for the Shares will be available via the CTA high-speed line. In addition, the Portfolio Indicative Value will be widely disseminated by the Exchange at least every 15 seconds during the Core Trading Session. The Fund's Web site will include a form of the prospectus for the Fund that may be downloaded, as well as additional quantitative information updated on a daily basis. On each business day, before commencement of trading in Shares in the Core Trading Session on the Exchange, the Fund will disclose on its Web site the Disclosed Portfolio that will form the basis for the Fund's calculation of NAV at the end of the business day. On a daily basis, the Adviser, on behalf of the Fund, will disclose on the Fund's Web site the following information regarding each portfolio holding, as applicable to the type of holding: Ticker symbol, CUSIP number or other identifier, if any; a description of the holding (including the type of holding); the identity of the security, index, or other asset or instrument underlying the holding, if any; maturity date, if any; coupon rate, if any; effective date, if any; market value of the holding; and the percentage weighting of the holding in the Fund's portfolio. The Web site information will be publicly available at no charge. Moreover, prior to the commencement of trading, the Exchange will inform its Equity Trading Permit Holders in an Information Bulletin of the special characteristics and risks associated with trading the Shares. Trading in Shares of the Fund will be halted if the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. Trading in the Shares will be subject to NYSE Arca Equities Rule 8.600(d)(2)(D), which sets forth circumstances under which Shares of the Fund may be halted. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, the Portfolio Indicative Value, the Disclosed Portfolio, and quotation and last sale information for the Shares.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest in that it will facilitate the listing and trading of an additional type of actively-managed exchange-traded product that will enhance competition among market participants, to the benefit of investors and the marketplace. As noted above, the Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. In addition, as noted above, investors will have ready access to information regarding the Fund's holdings, the Portfolio Indicative Value, the Disclosed Portfolio, and quotation and last sale information for the Shares.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange notes that the proposed rule change will facilitate the listing and trading of an additional type of actively-managed exchange-traded product that primarily holds equity securities and that will enhance competition among market participants, to the benefit of investors and the marketplace.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove the proposed rule change, or
(B) institute proceedings to determine whether the proposed rule change should be disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549–1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to section 19(b)(1)
The Exchange proposes to change a representation regarding the AdvisorShares WCM/BNY Mellon Focused Growth ADR ETF's holdings of non-U.S. equity securities. Shares of the WCM/BNY Mellon Focused Growth ADR ETF have been approved for listing and trading on the Exchange under NYSE Arca Equities Rule 8.600. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Commission has approved a proposed rule change relating to listing and trading on the Exchange of shares (“Shares”) of the AdvisorShares WCM/BNY Mellon Focused Growth ADR ETF (the “Fund”) under NYSE Arca Equities Rule 8.600,
The Shares are offered by AdvisorShares Trust (the “Trust”), a statutory trust organized under the laws of the State of Delaware and registered with the Commission as an open-end management investment company.
According to the Registration Statement, and as stated in the Prior Release the Fund's investment objective is long-term capital appreciation above international benchmarks such as the BNY Mellon Classic ADR Index and the MSCI EAFE Index. WCM seeks to achieve the Fund's investment objective by selecting a portfolio of U.S. traded securities of non-U.S. organizations included in the BNY Mellon Classic ADR Index. The BNY Mellon Classic ADR Index predominantly includes American Depositary Receipts (“ADRs”) and in addition includes other Depositary Receipts (“DRs”), which include Global Depositary Receipts (“GDRs”), Euro Depositary Receipts (“Euro DRs”) and New York Shares (“NYSs”).
According to the Prior Release, WCM employs a team approach through Investment Strategy Group, consisting of four senior investment professionals (the “Portfolio Managers”). This team establishes portfolio guidelines for sector and industry analysis and develops the Fund's portfolio. The Portfolio Managers analyze the major trends in the global economy in order to identify those economic sectors and
According to the Prior Release, the composition of the Fund's portfolio, on a continual basis, will be subject to the following: (1) Component stocks that in the aggregate account for at least 90% of the weight of the portfolio each shall have a minimum market value of at least $100 million;
As noted above, the Prior Release states that the Fund will not invest in non-U.S. equity securities outside of U.S. markets. The Exchange proposes to amend such statement in the Prior Release to provide that, going forward, the Fund may invest in securities outside of U.S. markets, and that not more than 10% of the net assets of the Fund in the aggregate invested in equity securities (excluding non-exchange-traded investment company securities) shall consist of equity securities whose principal market is not a member of the Intermarket Surveillance Group (“ISG”) or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement. The Exchange notes that the Commission has previously approved similar percentage limitations for other funds listed on the Exchange under NYSE Arca Equities Rule 8.600.
Such an increase will provide the Fund with the ability to invest to a limited extent in non-U.S. equity securities outside of U.S. markets and therefore will facilitate the Fund's ability to achieve its investment objective of long-term capital appreciation above international benchmarks, as noted above. Except for the change described above, all other representations made in the Prior Release remain unchanged.
The Exchange represents that the trading in the Shares will be subject to the existing trading surveillances, administered by the Financial Industry Regulatory Authority (“FINRA”) on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws.
The basis under the Act for this proposed rule change is the requirement under section 6(b)(5)
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Equities Rule 8.600. With respect to the representation that the Fund may invest in securities outside of U.S. markets and that not more than 10% of the net assets of the Fund in the aggregate invested in equity securities (excluding non-exchange-traded investment company securities) shall consist of equity securities whose principal market is not a member of the ISG or is a market with which the Exchange does not have a comprehensive surveillance sharing agreement, the Exchange believes such limitation of assets will not adversely impact investors and serves to protect investors and the public interest for the following reasons. The Commission has previously approved such limitations
The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to deter and detect violations of Exchange rules and applicable federal securities laws. The Exchange may obtain information via the ISG from other exchanges that are members of ISG or with which the Exchange has entered into a comprehensive surveillance sharing agreement.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the net asset value (“NAV”) per Share is calculated daily and that the NAV and the Disclosed Portfolio is made available to all market participants at the same time. In addition, a large amount of information is publicly available regarding the Fund and the Shares, thereby promoting market transparency. The Portfolio Indicative Value, as defined in NYSE Arca Equities Rule 8.600 (c)(3), is disseminated by one or more major market data vendors at least every 15 seconds during the Exchange's Core Trading Session. On a daily basis, the Adviser discloses for each portfolio security or other financial instrument of the Fund the following information: ticker symbol (if applicable), name of security or financial instrument, number of shares or dollar value of financial instruments held in the portfolio, and percentage weighting of the security or financial instrument in the portfolio. The Fund's holdings are disclosed on its Web site daily after the close of trading on the Exchange and prior to the opening of trading on the Exchange the following day. Information regarding market price and trading volume of the Shares is and will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services, and quotation and last sale information is available via the Consolidated Tape Association high-speed line. Price information regarding the Fund's equity investments is available from major market data vendors. The intra-day, closing and settlement prices for exchange-listed equity securities held by the Fund are also readily available from the national securities exchanges trading such securities. Trading in Shares of the Fund will be halted if the circuit breaker parameters in NYSE Arca Equities Rule 7.12 have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. Trading in the Shares is subject to NYSE Arca Equities Rule 8.600(d)(2)(D), which sets forth circumstances under which Shares of the Fund may be halted. The Web site for the Fund includes a form of the prospectus for the Fund and additional data relating to NAV and other applicable quantitative information. In addition, as stated in the Prior Notice, investors have ready access to information regarding the Fund's holdings, the Portfolio Indicative Value, the Disclosed Portfolio, and quotation and last sale information for the Shares.
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest. As noted above, the Exchange represents that the trading in the Shares will be subject to the existing trading surveillances, administered by FINRA on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and federal securities laws applicable to trading on the Exchange. FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares and exchange-listed equity securities (including ADRs) with other markets and other entities that are members of the ISG, and FINRA, on behalf of the Exchange, may obtain trading information regarding trading in the Shares and exchange-listed equity securities (including ADRs) from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares and exchange-listed equity securities (including ADRs) from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement. In addition, as stated in the Prior Release, investors have ready access to information regarding the Fund's holdings, the Portfolio Indicative Value, the Disclosed Portfolio, and quotation and last sale information for the Shares. The Adviser represents that the proposed change, as described above, is consistent with the Fund's investment objective, and will further assist the Adviser and Sub-Adviser to achieve such investment objective. Such an increase may further the public interest by providing the Fund with additional flexibility to achieve long-term capital appreciation above international benchmarks.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange believes the proposed rule change is designed to broaden the range of securities in which the Fund may invest to include non-U.S. securities, thereby helping the Fund to achieve its investment objective, and will enhance competition among issues of Managed Fund Shares that invest in equity securities.
No written comments were solicited or received with respect to the proposed rule change.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to section 19(b)(3)(A)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, 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.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition.
FMCSA announces its decision to exempt 24 individuals from the vision requirement in the Federal Motor Carrier Safety Regulations (FMCSRs). They are unable to meet the vision requirement in one eye for various reasons. The exemptions will enable these individuals to operate commercial motor vehicles (CMVs) in interstate commerce without meeting the prescribed vision requirement in one eye. The Agency has concluded that granting these exemptions will provide a level of safety that is equivalent to or greater than the level of safety maintained without the exemptions for these CMV drivers.
The exemptions were granted January 10, 2015. The exemptions expire on January 10, 2017.
Charles A. Horan, III, Director, Carrier, Driver and Vehicle Safety Standards, (202) 366–4001,
You may see all the comments online through the Federal Document Management System (FDMS) at
On December 10, 2014, FMCSA published a notice of receipt of exemption applications from certain individuals, and requested comments from the public (79 FR 73397). That notice listed 24 applicants' case histories. The 24 individuals applied for exemptions from the vision requirement in 49 CFR 391.41(b)(10), for drivers who operate CMVs in interstate commerce.
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption for a 2-year period if it finds “such exemption would likely achieve a level of safety that is equivalent to or greater than the level that would be achieved absent such exemption.” The statute also allows the Agency to renew exemptions at the end of the 2-year period. Accordingly, FMCSA has evaluated the 24 applications on their merits and made a determination to grant exemptions to each of them.
The vision requirement in the FMCSRs provides:
A person is physically qualified to drive a commercial motor vehicle if that person has distant visual acuity of at least 20/40 (Snellen) in each eye without corrective lenses or visual acuity separately corrected to 20/40 (Snellen) or better with corrective lenses, distant binocular acuity of a least 20/40 (Snellen) in both eyes with or
FMCSA recognizes that some drivers do not meet the vision requirement but have adapted their driving to accommodate their vision limitation and demonstrated their ability to drive safely. The 24 exemption applicants listed in this notice are in this category. They are unable to meet the vision requirement in one eye for various reasons, including amblyopia, loss of vision, retinal detachment, corneal scarring, retinal scar, amblyopia with refractive error, enucleation, cataract, phthisical, refractive amblyopia, open globe trauma, optic atrophy, amblyopic vision loss, aphakia, optic atrophy, Lasik vision complication, and cyclodialysis. In most cases, their eye conditions were not recently developed. Sixteen of the applicants were either born with their vision impairments or have had them since childhood.
The eight individuals that sustained their vision conditions as adults have had them for a range of four to 44 years.
Although each applicant has one eye which does not meet the vision requirement in 49 CFR 391.41(b)(10), each has at least 20/40 corrected vision in the other eye, and in a doctor's opinion, has sufficient vision to perform all the tasks necessary to operate a CMV. Doctors' opinions are supported by the applicants' possession of valid commercial driver's licenses (CDLs) or non-CDLs to operate CMVs. Before issuing CDLs, States subject drivers to knowledge and skills tests designed to evaluate their qualifications to operate a CMV.
All of these applicants satisfied the testing requirements for their State of residence. By meeting State licensing requirements, the applicants demonstrated their ability to operate a CMV, with their limited vision, to the satisfaction of the State.
While possessing a valid CDL or non-CDL, these 24 drivers have been authorized to drive a CMV in intrastate commerce, even though their vision disqualified them from driving in interstate commerce. They have driven CMVs with their limited vision in careers ranging from 1.5 to 42 years. In the past three years, one of the drivers was involved in a crash and two were convicted of moving violations in a CMV.
The qualifications, experience, and medical condition of each applicant were stated and discussed in detail in the December 10, 2014, notice (79 FR 73397).
Under 49 U.S.C. 31136(e) and 31315, FMCSA may grant an exemption from the vision requirement in 49 CFR 391.41(b)(10) if the exemption is likely to achieve an equivalent or greater level of safety than would be achieved without the exemption. Without the exemption, applicants will continue to be restricted to intrastate driving. With the exemption, applicants can drive in interstate commerce. Thus, our analysis focuses on whether an equal or greater level of safety is likely to be achieved by permitting each of these drivers to drive in interstate commerce as opposed to restricting him or her to driving in intrastate commerce.
To evaluate the effect of these exemptions on safety, FMCSA considered the medical reports about the applicants' vision as well as their driving records and experience with the vision deficiency.
To qualify for an exemption from the vision requirement, FMCSA requires a person to present verifiable evidence that he/she has driven a commercial vehicle safely with the vision deficiency for the past 3 years. Recent driving performance is especially important in evaluating future safety, according to several research studies designed to correlate past and future driving performance. Results of these studies support the principle that the best predictor of future performance by a driver is his/her past record of crashes and traffic violations. Copies of the studies may be found at Docket Number FMCSA–1998–3637.
FMCSA believes it can properly apply the principle to monocular drivers, because data from the Federal Highway Administration's (FHWA) former waiver study program clearly demonstrate the driving performance of experienced monocular drivers in the program is better than that of all CMV drivers collectively (See 61 FR 13338, 13345, March 26, 1996). The fact that experienced monocular drivers demonstrated safe driving records in the waiver program supports a conclusion that other monocular drivers, meeting the same qualifying conditions as those required by the waiver program, are also likely to have adapted to their vision deficiency and will continue to operate safely.
The first major research correlating past and future performance was done in England by Greenwood and Yule in 1920. Subsequent studies, building on that model, concluded that crash rates for the same individual exposed to certain risks for two different time periods vary only slightly (See Bates and Neyman, University of California Publications in Statistics, April 1952). Other studies demonstrated theories of predicting crash proneness from crash history coupled with other factors. These factors—such as age, sex, geographic location, mileage driven and conviction history—are used every day by insurance companies and motor vehicle bureaus to predict the probability of an individual experiencing future crashes (See Weber, Donald C., “Accident Rate Potential: An Application of Multiple Regression Analysis of a Poisson Process,” Journal of American Statistical Association, June 1971). A 1964 California Driver Record Study prepared by the California Department of Motor Vehicles concluded that the best overall crash predictor for both concurrent and nonconcurrent events is the number of single convictions. This study used 3 consecutive years of data, comparing the experiences of drivers in the first 2 years with their experiences in the final year.
Applying principles from these studies to the past 3-year record of the 24 applicants, one of the drivers was involved in a crash and two were convicted of moving violations in a CMV. All the applicants achieved a record of safety while driving with their vision impairment, demonstrating the likelihood that they have adapted their driving skills to accommodate their condition. As the applicants' ample driving histories with their vision deficiencies are good predictors of future performance, FMCSA concludes their ability to drive safely can be projected into the future.
We believe that the applicants' intrastate driving experience and history provide an adequate basis for predicting their ability to drive safely in interstate commerce. Intrastate driving, like interstate operations, involves substantial driving on highways on the interstate system and on other roads built to interstate standards. Moreover, driving in congested urban areas exposes the driver to more pedestrian and vehicular traffic than exists on interstate highways. Faster reaction to traffic and traffic signals is generally required because distances between them are more compact. These conditions tax visual capacity and driver response just as intensely as interstate driving conditions. The veteran drivers in this proceeding have operated CMVs safely under those conditions for at least 3 years, most for much longer. Their experience and driving records lead us to believe that each applicant is capable of operating in
We recognize that the vision of an applicant may change and affect his/her ability to operate a CMV as safely as in the past. As a condition of the exemption, therefore, FMCSA will impose requirements on the 24 individuals consistent with the grandfathering provisions applied to drivers who participated in the Agency's vision waiver program.
Those requirements are found at 49 CFR 391.64(b) and include the following: (1) That each individual be physically examined every year (a) by an ophthalmologist or optometrist who attests that the vision in the better eye continues to meet the requirement in 49 CFR 391.41(b)(10) and (b) by a medical examiner who attests that the individual is otherwise physically qualified under 49 CFR 391.41; (2) that each individual provide a copy of the ophthalmologist's or optometrist's report to the medical examiner at the time of the annual medical examination; and (3) that each individual provide a copy of the annual medical certification to the employer for retention in the driver's qualification file, or keep a copy in his/her driver's qualification file if he/she is self-employed. The driver must have a copy of the certification when driving, for presentation to a duly authorized Federal, State, or local enforcement official.
FMCSA received no comments in this proceeding.
Based upon its evaluation of the 24 exemption applications, FMCSA exempts the following drivers from the vision requirement in 49 CFR 391.41(b)(10), subject to the requirements cited above (49 CFR 391.64(b)):
In accordance with 49 U.S.C. 31136(e) and 31315, each exemption will be valid for 2 years unless revoked earlier by FMCSA. The exemption will be revoked if: (1) The person fails to comply with the terms and conditions of the exemption; (2) the exemption has resulted in a lower level of safety than was maintained before it was granted; or (3) continuation of the exemption would not be consistent with the goals and objectives of 49 U.S.C. 31136 and 31315.
If the exemption is still effective at the end of the 2-year period, the person may apply to FMCSA for a renewal under procedures in effect at that time.
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Notice of public meeting.
This notice is to advise interested persons that PHMSA will host a Research and Development Forum on Thursday, April 16, 2015, in Washington, DC. PHMSA will use the forum to present the results of recently completed research projects and to discuss current and future research projects. PHMSA will also be soliciting comments on new research projects which may be considered for inclusion in its strategic plan.
Conference call-in and “live meeting” capability will be provided for the meeting. Specific information on call-in and live meeting access will be posted when available at
Mr. Richard Boyle, Office of Hazardous Materials Safety, Department of Transportation, Washington, DC 20590; (202) 366–4545.
Topics on the agenda for the Research and Development Forum include:
• Short-Term Projects (Funded)
○ Hazardous Materials Automated Cargo Communications for Efficient and Safe Shipments (HM–ACCESS)
○ Lithium Batteries
• Mid-Term Projects (Funding Now)
○ Risks Associated with Chained/Unchained Fireworks
○ Incident Investigation: Food Trucks; Oxygen Cylinders
○ Reactivity of Toxic Inhalation Hazard (TIH) material
○ Classification of Crude Oil
○ Service Life Extension of Composite Cylinders
• Long-Term Projects (Planning Funding) potential projects include:
○ Emerging Packaging and Transport Risks
○ Risk Management Framework
○ Crude Oil Classification, Packaging and Transport
○ Bulk Transport of LNG
○ Design and Testing of Composite Overwrapped Cylinders
Office of Hazardous Materials Safety, Pipeline And Hazardous Materials Safety Administration, PHMSA, DOT.
Notice of actions on special permit applications.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations (49 CFR part 107, Subpart B), notice is hereby given of the actions on special permits applications in (October to October 2014). The mode of transportation involved are identified by a number in the “Nature of Application” portion of the table below as follows: 1—Motor vehicle, 2—Rail freight, 3—Cargo vessel, 4—Cargo aircraft only, 5—Passenger-carrying aircraft. Application numbers prefixed by the letters EE represent applications for Emergency Special Permits. It should be noted that some of the sections cited were those in effect at the time certain special permits were issued.
Office of Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration, PHMSA, DOT.
List of Applications for Special Permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations (49 CFR part 107, subpart B), notice is hereby given that the Office of Hazardous Materials Safety has received the application described herein. Each mode of transportation for which a particular special permit is requested is indicated by a number in the “Nature of Application” portion of the table below as follows: 1-Motor vehicle, 2-Rail freight, 3-Cargo vessel, 4-Cargo aircraft only, 5-Passenger-carrying aircraft.
Comments must be received on or before March 23, 2015.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Copies of the applications are available for inspection in the Records Center, East Building, PHH–30, 1200 New Jersey Avenue Southeast, Washington DC or at
This notice of receipt of applications for special permit is published in accordance with Part 107 of the Federal hazardous materials transportation law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
Office of Hazardous Materials Safety, Pipeline and Hazardous Materials Safety Administration, PHMSA, DOT.
List of application for modification of special permits.
In accordance with the procedures governing the application for, and the processing of, special permits from the Department of Transportation's Hazardous Material Regulations (49 CFR part 107, Subpart B), notice is hereby given that the Office of Hazardous Materials Safety has received the applications described herein. This notice is abbreviated to expedite docketing and public notice. Because the sections affected, modes of transportation, and the nature of application have been shown in earlier
Comments must be received on or before March 9, 2015.
Send comments to: Record Center, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, Washington, DC 20590.
Comments should refer to the application number and be submitted in triplicate. If confirmation of receipt of comments is desired, include a self-addressed stamped postcard showing the special permit number.
Copies of the applications are available for inspection in the Records Center, East Building, PHH–30, 1200 New Jersey Avenue SE., Washington, DC or at
This notice of receipt of applications for modification of special permit is published in accordance with Part 107 of the Federal Hazardous Materials Transportation Law (49 U.S.C. 5117(b); 49 CFR 1.53(b)).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
We, the NMFS, propose to replace the critical habitat for right whales in the North Atlantic with two new areas. The areas under consideration as critical habitat contain approximately 29,945 nm
We are soliciting comments from the public on all aspects of the proposal, including our identification and consideration of impacts of the proposed action. A draft Biological Source Document provides the basis for our identification of the physical and biological features essential to the conservation of the species that may require special management considerations or protection. A draft report was also prepared pursuant to section 4(b)(2) of the Endangered Species Act (ESA) in support of this proposal. Both supporting documents are available for public review and comment.
Comments on this proposal must be received by April 21, 2015.
You may submit comments, identified by the NOAA–NMFS–2014–0085, by any of the following methods:
•
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NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).
Mark Minton, NMFS, Greater Atlantic Regional Fisheries Office (GARFO), 978–282–8484,
The Draft Biological Source Document (NMFS 2014a) and Draft ESA Section 4(b)(2) Report (NMFS 2014b) prepared in support of this proposal for critical habitat for the North Atlantic right whale are available on our Web site at
In 1970, right whales,
In 2006, we published a comprehensive right whale status review, which concluded that recent genetic data provided unequivocal support to distinguish three right whale lineages as separate phylogenetic species (Rosenbaum
On October 1, 2009, NMFS received a petition to revise the 1994 critical habitat designation for right whales in the North Atlantic. In response, pursuant to section 4(b)(3)(D), NMFS published a combined 90-day finding and 12-month determination on October 6, 2010, that the petition presented substantial scientific information indicating that the requested revision may be warranted, and that we intended to issue a proposed rule to revise critical habitat for the North Atlantic right whale (75 FR 61690). As noted in that finding, the biological basis and analysis for the 1994 critical habitat designation were based on the North Atlantic population of right whales, and we consider that designation to continue to apply to North Atlantic right whales after they were subsequently listed as a separate species in 2008. At this time, NMFS is proposing to replace the 1994 critical habitat designation for the population of right whales in the North Atlantic Ocean with two new areas of critical habitat for the North Atlantic right whale.
The following discussion of the life history and reproductive biology and population status of North Atlantic right whales is based on the best scientific data available, including the North Atlantic right whale Status Review Report (NMFS 2006) and the Draft
The North Atlantic right whale (
Historically, right whale species occurred in all the world's oceans from temperate to subpolar latitudes. They primarily occur in coastal or shelf waters, although movements over deep waters are known to occur. Right whales are generally migratory, with at least a portion of the population moving between summer feeding grounds in temperate or high latitudes and winter calving areas in warmer waters, though during winter the whereabouts of a portion of the population remain unknown (Waring
The distribution of North Atlantic right whales in the western North Atlantic Ocean ranges primarily from calving grounds in coastal waters of the southeastern United States to feeding grounds in New England waters and the Canadian Bay of Fundy, Scotian Shelf, and Gulf of St. Lawrence. The minimum number of right whales in the western North Atlantic Ocean is estimated to be at least 444 individuals, based on a census of individual whales identified using photo-identification techniques (Waring
Waring
Critical habitat is defined by section 3 of the ESA as (i) the specific areas within the geographical area occupied by the species, at the time it is listed, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed, upon a determination by the Secretary that such areas are essential for the conservation of the species. This definition provides a step-wise approach to identifying areas that may be designated as critical habitat for North Atlantic right whales.
“Geographical areas occupied” in the definition of critical habitat is interpreted to mean the entire range of the species at the time it was listed, inclusive of all areas they use and move through seasonally (45 FR 13011; February 27, 1980). Prior to extensive exploitation, the North Atlantic right whale was found distributed in temperate, subarctic, coastal and continental shelf waters throughout the North Atlantic Ocean rim (Perry
Right whales have also been rarely observed in the Gulf of Mexico. The few published sightings (Moore and Clark 1963, Schmidly and Melcher 1974, Ward-Geiger
Our regulations at 50 CFR 424.12(h) state: “Critical habitat shall not be designated within foreign countries or in other areas outside of United States jurisdiction.” Although North Atlantic right whales have been sighted in coastal waters of Canada, Greenland, Iceland, and Norway, these areas cannot be considered for designation. The geographical area occupied by listed North Atlantic right whales that is within the jurisdiction of the United States is therefore limited to waters off the U.S. east coast between Maine and Florida, seaward to the boundary of the U.S. Exclusive Economic Zone.
As noted previously, NMFS produced a Draft Biological Source Document (NMFS 2014a) that discusses our application of the ESA's definition of critical habitat for right whales in detail. The following discussion is derived from that document.
Within the geographical area occupied, critical habitat consists of specific areas on which are found those physical or biological features essential to the conservation of the species (hereafter also referred to as “essential features”) and that may require special management considerations or protection. Section 3 of the ESA (16 U.S.C. 1532(3)) defines the terms “conserve,” “conserving,” and “conservation” in part to mean: “To use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter are no longer necessary.” Further, our regulations at 50 CFR 424.12(b) for designating critical habitat state that physical and biological features that are essential to the conservation of a given species and that may require special management considerations or protection may include: (1) Space for individual and population growth, and for normal
For right whales, the 2005 Recovery Plan defines conservation as the use of all methods and procedures necessary to bring right whales to the point at which factors related to population ecology and vital rates indicate that the population may be: (1) Downlisted to threatened, and; (2) ultimately, delisted because it is no longer in danger of extinction throughout all or a significant portion of its range. Important factors related to right whale population ecology and vital rates include population size and trend, range, distribution, age structure, gender ratios, age-specific survival, age-specific reproduction, and lifetime reproductive success.
The 2005 Recovery Plan identifies five major objectives designed to increase population size and vital rates so that North Atlantic right whales may be reclassified to threatened. These objectives include significantly reducing sources of human-caused death, injury and disturbance; developing demographically-based recovery criteria; identifying, characterizing, protecting and monitoring important habitats; monitoring the status and trends of abundance and distribution of the species; and coordinating federal, state, local, international and private efforts to implement the Recovery Plan.
Based on the Recovery Plan's reclassification objectives and criteria for North Atlantic right whales, NMFS has identified four biological behaviors that are critical to the overarching recovery objectives of increased survival and population growth: (1) Feeding, (2) calving, (3) migration and (4) breeding. In the following section, we evaluate whether there are physical and biological features of the habitat areas known to be used for these behaviors that are essential to the species' conservation because they facilitate or are intimately tied to the behaviors. Because these behaviors are essential to the species' conservation, facilitating or protecting each one is considered a key conservation objective for any critical habitat designation for this species.
North Atlantic right whales are filter feeders whose prey consists exclusively of zooplankton, notably the copepod
Oceanic waters off New England and Nova Scotia are the primary feeding habitat for right whales during the late winter, spring, summer, and fall. Variation in the abundance and development of suitable food patches appears to modify the general patterns of right whale movement by reducing peak numbers, stay durations, and specific locales (Brown
A right whale's mass is approximately 10 orders of magnitude larger than that of its prey, and the right whale's life history and reproductive strategies create very high energetic demands. Right whales are very specialized and restricted in their feeding requirements. They must locate and exploit feeding areas where copepods are concentrated into high-density patches. Efficient feeding on prey with high nutritional value is essential to the conservation of the North Atlantic right whale. Efficient feeding is not only important to meet the day-to-day caloric needs of individual right whales, but is important to achieve the overall goal of conservation because of the potential correlation between the abundance and caloric richness of copepods and the calving rates for right whales. Therefore, we conclude that facilitating successful feeding by protecting the physical and biological features that characterize feeding habitat is a key conservation objective that could be supported by designation of critical habitat for the species.
The features of right whale foraging habitat that are essential to the conservation of the North Atlantic right whale are a combination of the following biological and physical oceanographic features:
(1) The physical oceanographic conditions and structures of the Gulf of Maine and Georges Bank region that combine to distribute and aggregate
(2) Low flow velocities in Jordan, Wilkinson, and Georges Basins that allow diapausing
(3) Late stage
(4) Diapausing
Within the Gulf of Maine, right whale foraging activities are concentrated in areas where physical oceanographic conditions and structures, namely prevailing currents and circulation patterns, bathymetric features (basins, banks, and channels), oceanic fronts, density gradients, and temperature regimes operate to concentrate copepods (Wishner
Major Gulf of Maine and Georges Bank oceanographic features include the Maine Coastal Current (MCC), Georges Bank anti-cyclonic frontal circulation system, the basin-scale cyclonic gyres (Jordan, Georges and Wilkinson), the deep inflow through the Northeast Channel, the shallow outflow via the Great South Channel and the shelf-slope front (Gangopadhyay
Water from the Northwest Atlantic Ocean enters the Gulf of Maine over the Scotian Shelf and through the deep Northeast Channel, where it forms a general counterclockwise circulation pattern. These slope waters entering the Gulf of Maine from the Scotian Shelf are believed to transport considerable numbers of developing copepodites originating from both the Gulf of St. Lawrence and the Scotian Shelf (Plourde and Runge 1993, Greene and Pershing 2000, Conversi
Due to the strong influence of the Labrador Current, the water of the Gulf of Maine is significantly colder and more nutrient-rich than waters to the south. This relatively fresh, cold water flows to the northeast around the southern end of Nova Scotia, across the mouth of the Bay of Fundy and then flows southward. This water helps drive the Maine Coastal Current (Brooks 1985, Durbin 1997). The cold water inflow from the Nova Scotian Shelf and the Northeast Channel helps drive the primarily counterclockwise circulation of the Gulf, propelling the Maine Coastal Current in a southwesterly direction (Brooks 1985, Durbin 1997). The Maine Coastal Current has two major components, the Eastern Maine Coastal Current off Maine's east coast and the Western Maine Coastal Current off the coasts of western Maine, New Hampshire and Massachusetts. These currents are influenced by fluctuations in river outflow, often enhanced during spring runoff. Lower salinity surface water from spring runoff carried into this region by the Maine Coastal Current can cause strong stratification and increase the rate of horizontal transport, therefore having an impact on the abundance, distribution and population dynamics of
The Gulf of Maine's circulation pattern is principally density driven largely because of seasonal temperature changes and salinity gradients. During spring and summer months, water within the Gulf warms, resulting in buoyant, less dense water that expands, setting up a westerly flowing coastal current. The seasonal warming pattern of waters within the Gulf of Maine also results in enhanced stratification of the water column. Warmer, less dense surface water is separated from the colder, more saline dense waters that persist at greater depth throughout the year. The currents in the Gulf of Maine are also strongly influenced by density gradients between high-salinity slope water entering from the Atlantic and fresher waters, which form in the Gulf of Maine or enter from the Scotian Shelf (Brooks 1985). Within the Gulf of Maine, the freshwater inflow from numerous rivers (
There is a distinct seasonal pattern associated with prevailing circulation patterns within the Gulf of Maine. During spring and summer, the surface circulation pattern in the Gulf of Maine is characterized by a predominantly cyclonic (
In Cape Cod Bay, the general water flow is counter-clockwise, running from the Gulf of Maine south into the western half of Cape Cod Bay, over to eastern Cape Cod Bay, and back into the Gulf of Maine through the channel between the north end of Cape Cod and the southeast end of Stellwagen Bank, a submarine bank that lies just north of Cape Cod. Similar to the Maine Coastal Current, flow within the bay is driven by density gradients caused by freshwater river run-off from the Gulf of Maine and by a predominantly westerly wind (Franks and Anderson 1992a, 1992b, Geyer
The Great South Channel becomes thermally stratified during the spring and summer months. Surface waters typically range from 3 to 17 °C between winter and summer. Salinity is stable throughout the year at approximately 32–33 parts per thousand (Hopkins and Garfield 1979). In late-winter/early spring, mixing of warmer shelf waters with the cold Gulf of Maine water funneled through the channel causes a dramatic increase in faunal productivity in the Great South Channel.
Baumgartner
In addition to the combination of physical oceanographic conditions and structures identified previously, the hydrographic conditions of the deep ocean basins are important because they are conducive to low flow velocities. Within the low velocity environments of the deep ocean basins, the neutrally buoyant diapausing copepods passively aggregate below the convective mixed layer (Lynch
Johnson
Johnson
As noted earlier, Jordan and Georges Basins are themselves recipients of copepods from upstream sources in the Northeast Channel, continental slope water, and Scotian Shelf (Johnson
Miller
Given that low velocity environments are important for aggregating dormant copepods, and given that the best available data indicate that the ability of the Jordan, Wilkinson, and Georges Basins to retain dormant copepods is high, we conclude another physical feature of North Atlantic right whale foraging habitat essential to its conservation is: Low flow velocities in Jordan, Wilkinson, and Georges Basins that allow diapausing
The biological features of foraging habitat that are essential to the conservation of the North Atlantic right whale are: (1) Late stage
For much of the year, the distribution of the North Atlantic right whale is strongly correlated to the distribution of their prey. Right whale distribution in the Gulf of Maine is largely controlled by zooplankton distribution (Mayo
In order to maximize their caloric intake, right whales must target dense layers containing large, energetically rich prey (Wishner
As the principal prey source of right whales,
In terms of biomass
Given that these dormant, diapausing pre-adult C5 copepodites serve as one of the primary source populations for annual recruitment of the essential feature of late stage
Like most large whales, North Atlantic right whales tend to calve in warm subtropical waters during winter, and migrate to feed in the highly productive cold temperate and subpolar waters in spring and summer (Green and Pershing 2004). The only known calving habitat for North Atlantic right whales occurs along the southeastern U.S. coast (Kraus
The physical features of right whale calving habitat that are essential to the conservation of the North Atlantic right whale are: (1) Calm sea surface conditions of Force 4 or less on the Beaufort Wind Scale; (2) Sea surface temperatures from a minimum of 7 °C, and never more than 17 °C; and (3) Water depths of 6 to 28 meters, where
As discussed in the Biological Source Document (NMFS 2014a), habitat characteristics common to lower latitude calving areas for large whales include warmer water temperatures, lower average wind speeds, less frequent storms, and lower wave heights compared to conditions at higher latitudes (Garrison 2007). These common calving habitat characteristics for large whales likely provide an energy benefit to both lactating mothers and calves. Female baleen whales do not typically feed during movement to, or the residence period in, the calving ground, and endure a significant energetic cost with reproduction (Garrison 2007). Mother whales fast during part of or throughout lactation, and maternal reserves are heavily exploited for milk production (Oftedal 1997, 2000). Fasting in warm water during lactation is likely more efficient than feeding, or even fasting, in colder water where energy reserves must be spent to keep body temperatures up as discussed later. Warm-water may also aid in the conversion of maternal body fat to high-fat milk, hence contributing to rapid calf growth (Oftedal 2000, Whitehead and Mann 2000).
Females in calmer, shallower waters require less energy for surfacing, and thus reserve energy for calving and nursing. Additionally, newborn animals may have increased survival, and/or lower energy expenditure in warmer, calmer, or less predator-infested waters (Brodie 1975, Lockyer 1987, as cited in Whitehead and Mann 2000, Corkeron and Connor 1999). Calves have been reported to have difficulty surfacing to breathe in extremely rough waters (Thomas and Taber 1984). Further, calves are relatively weak swimmers (Thomas and Taber 1984) and are more likely to be separated from their mothers during storm events and in areas with high winds and waves; separation from the mother for even a short time is likely fatal for newborn calves (Garrison 2007).
Although direct data about thermal tolerances in right whales are lacking (Kenney 2007), warmer water temperatures likely provide a thermoregulatory benefit to calving right whales. As homoeothermic (warm-blooded) animals, right whales expend additional energy for thermoregulation when temperatures are either too cold or too hot compared to some thermal optimum. North Atlantic right whales have a mean blubber thickness of 12.2 cm (range 8 to 22 cm) (3 to 8.6 inches), and the blubber of new mothers is thicker than that of females in late lactation or nulliparious females (
North Atlantic right whales are observed calving off the southeastern U.S. coast, in an area known as the South Atlantic Bight (SAB). The SAB extends roughly from Cape Hatteras, North Carolina, to West Palm Beach, Florida. The SAB continental shelf varies from 40 to 140 km wide, with a shallow bathymetric slope. In the inner shelf, where the water depth is shallow and friction is large, the current responds almost instantaneously to local wind stress; as a result, water moves in the same direction as the wind (Chen 2000). In the middle and outer shelves, where the water is deep and friction is weak, the wind-driven current flows perpendicular to the wind direction (
Winter sea surface temperatures across the SAB range from 8 °C to 25 °C (Good 2008). Gulf Stream waters typically have temperatures greater than 20 °C during winter, and water closer to shore is cooler, ranging between 8 and 17 °C in the southeastern U.S. during winter months (Garrison 2007). Pulses of warm water frequently move shoreward as the result of Gulf Stream meanders, but a steady tongue of colder water persists directly adjacent to shore and out to the continental shelf break in winter (Stegmann and Yoder 1996, Keller
Aerial surveys for calving right whales have been conducted in the southeastern U.S. each winter (December–March) since 1992. Survey effort has varied throughout the area with the core calving area being surveyed most consistently (Keller
These results are corroborated by Good's (2008) predictive model of optimal right whale calving habitat, which assesses topological and physical conditions associated with the presence of North Atlantic right whale calves in the SAB. The model was used to evaluate the importance of water depth, sea surface temperature, and sea surface roughness in relation to the distribution of right whale mother-calf pairs over a period of 6 years (2000–2005). The model showed that sightings of right whale mother-calf pairs occurred within a narrow range of physical parameters. Over the course of the winter season (December through March), Good's (2008) model showed that the distribution of female right whales and their calves in the SAB is correlated with water depth, sea surface temperature, and surface roughness, with the importance of each variable differing by month. Sightings of mothers and calves occurred within a mean depth range between 13.8 m and 15.5 m where mean sea surface temperature varied between 14.2 and 17.7 °C and mean surface roughness varied from −24.8 dB to −23.3 dB. Higher backscatter values (
Together, the sightings data and predictive modeling results show that mother-calf pairs of North Atlantic right whales are observed and are likely to be observed in relatively shallow waters (10–20 m) within a narrow range of water temperatures (7 to 17 °C) (Keller
Calving right whales can be observed in waters exhibiting some or all of the features described previously within the specified ranges depending on factors such as the weather (
Because sea surface roughness has the strongest correlation to mother-calf pair distribution early in the calving season, areas of calm water in which these mother-calf pairs are located may also contain sea surface temperatures and water depths within the preferred ranges; however, as these two features are relatively less important for calf survival than calm water early in the calving season, areas in which mother-calf pairs are located are more likely to contain sea surface temperatures and water depths at the extremities of the preferred ranges (
It is evident from the distribution patterns of mother-calf pairs throughout the calving season (see Garrison 2007, Keller
Further illustrated by the modeling results reported by Garrison (2007), Keller
Large-scale migratory movements between feeding habitat in the northeast and calving habitat in the southeast are a necessary component in the life-history of the North Atlantic right whale. A proportion of the population makes this migration annually, and the most valuable life-history stage (calving females) must make this migration for successful reproduction. The subset of the North Atlantic right whale population that has been observed migrating between the northern feeding grounds and southern calving grounds is comprised disproportionately of reproductively mature females, pregnant females, juveniles, and young calves (Ward- Geiger
During migratory periods it is difficult to locate and sample marine mammals systematically or to observe them opportunistically, because they surface less frequently and cover large distances in any given day during migration (Hiby and Hammond 1989; Morreale
Beyond the uncertainty over the location of one or more migratory corridors, we cannot currently identify any specific physical or biological features that define migratory habitat.
Therefore, we have concluded that it is not currently possible to define critical habitat associated with right whale migratory behaviors. The draft Biological Source Document (NMFS 2014a) contains a thorough discussion of the available data we considered in our analysis.
We have concluded that it is not possible to identify essential physical or biological features related to breeding habitat, primarily because we cannot identify areas where breeding occurs. Right whales are known to aggregate in large groups called Surface Active Groups (SAGs). While indicative of courtship and reproductive behavior, not all SAGs are reproductive in nature (Kraus
Between 2002 and 2008, aerial surveys identified half the North Atlantic population in the central Gulf of Maine between November and January (Cole
The definition of critical habitat further instructs us to identify specific areas on which are found the physical or biological features essential to the species' conservation. Our regulations state that critical habitat will be defined by specific limits using reference points and lines on standard topographic maps of the area, and referencing each area by the State, county, or other local governmental unit in which it is located (50 CFR 424.12(c)). Our regulations also state that when several habitats, each satisfying requirements for designation as critical habitat, are located in proximity to one another, an inclusive area may be designated as critical habitat (50 CFR 424.12(d)). We identified two “specific areas” within the geographical area occupied by the species, at the time of listing, that contain the essential features for right whale foraging and calving habitat. The
All of the identified essential features are present within Unit 1 (Figure 1). The physical oceanographic conditions, late stage
While
While the seasonal distributions and general patterns of abundance of
Though the means by which right whales locate and exploit food resources is not well understood, the presence of foraging right whales is a reasonable proxy for determining where critical food densities are located (Kenney
Seasonal movement patterns of right whales and the available literature on the distribution, abundance, and population dynamics of calanoid copepods, indicate that several areas are important for right whale foraging in the Gulf of Maine/Georges Bank region: Cape Cod Bay (January–April), Great South Channel (April–June), western Gulf of Maine (April–May and July–October), northern edge of Georges Bank (May–July), Jordan Basin (August–October), and Wilkinson Basin (April–July). Analyses show that each of these areas has a defined pattern of repeated DAM events and thus whale feeding events, particularly in the past decade when more observations are available due to increased survey coverage, and/or are the source areas that supply the copepod prey to foraging areas (Pace and Merrick 2008).
Cape Cod Bay exhibits high densities of copepods during winter, spring, and, possibly fall, as evidenced by the large numbers of feeding right whales. Of the 17,257 right whale sightings in New England during 1970 through 2005, 7,498 were in Cape Cod Bay. A total of 543 pseudo-DAM events occurred in this area, most during January–April.
The Great South Channel has high copepod concentrations at depth, especially during March–July, as evidenced by the large numbers of feeding right whales, owing to bathymetric features and water circulation patterns. A total of 5,753 right whales were sighted in the area during 1970–2005; this included 344 pseudo-DAM events. Most right whale sightings occurred during April–June, but also in July in some years. Right whale use of the Great South Channel area is not nearly as uniform as in Cape Cod Bay, but is widespread enough to indicate that the Channel is a critical foraging area in almost every year.
The Western Gulf of Maine possesses a complex set of bathymetric features which markedly affect the spatial/temporal concentration of copepods among years. From 1970 through 2005, 1,749 right whale sightings (including 153 pseudo-DAM events) occurred in this area, mostly during April–May and July–October.
The northern edge of Georges Bank has high copepod densities at depth, especially during May–July, as evidenced by the large numbers of feeding right whales, emanating from physical features (
As part of our analysis of areas on which are found the essential foraging features, we considered an analysis of right whale sightings data along the east coast (70 FR 35849, June 25, 2005, NMFS 2007, 72 FR 57104, October 5, 2007). This analysis indicates that endangered large whales rarely venture into bays, harbors, or inlets. Based on this analysis, NMFS (2007) concluded that it is unlikely that right whales spend substantial amounts of time in the coastal waters of Maine, particularly inshore areas such as bays, harbors, or inlets (70 FR 35849, June 25, 2005, NMFS 2007, 72 FR 57104, October 5, 2007). Similarly, right whales are seldom reported in the small bays and harbors along the inside edge of Cape Cod, with the exception of Provincetown Harbor where foraging right whales have been observed. Due to the absence or rarity of foraging right whales in inshore areas, bays, harbors and inlets, we conclude that the essential feature of dense aggregations of late-stage
Lastly, we considered right whale sightings (and pseudo-DAM events) that have occurred to the south and east of the area described previously. Typically, whales are sighted in these areas in one year, but are not seen again for a number of years and evaluation of data across time series do not demonstrate any predictable repeated presence of whales. As a result, we conclude those areas do not provide predictable foraging habitat which is evident in the Gulf of Maine-Georges Bank region. Most likely, sightings in these areas consist of whales that feed opportunistically while migrating to the Gulf of Maine. This includes the large number of feeding right whales sighted in Block Island Sound in April 2010 and the smaller aggregation observed 2011. The sightings off Rhode Island represents the largest group of right whales ever documented in those waters. However, right whales have not been observed in Block Island Sound in subsequent years and a pattern of repeated annual observations is not evident in these areas.
The large area depicted in Figure 1 encompasses all of the physical oceanographic conditions and structures of the Gulf of Maine and Georges Bank region, namely prevailing currents and circulation patterns, bathymetric features (basins, banks, and channels), oceanic fronts, density gradients, and temperature regimes that combine to distribute and aggregate
Consistent with our regulations (50 CFR 424.12(c)), we have identified one “specific area” within the geographical area occupied by the species at the time of listing, that contains the identified physical and biological features of
The specific area on which are found the physical and biological features essential to foraging and thus to the conservation of the North Atlantic right whale include all waters, seaward of the boundary depicted in Figure 1 (for actual coordinates see below). The boundary of the proposed critical habitat for Unit 1 is delineated generally by a line connecting the geographic coordinates and landmarks as follows: From the southern tip of Monomoy Island (Cape Cod) (41°38.39′ N, 69°57.32′ W) extending southeasterly to 40°50′ N, 69°12′ W (the Great South Channel); then east to 40°50′ N 68°50′ W. From this point, the proposed boundary extends northeasterly direction to 42°00′ N, 67°55′ W and then in an easterly direction to 42°00′ N 67°30′ W. From this point, the proposed boundary extends northeast along the northern edge of Georges Bank to the intersection of the U.S.-Canada maritime boundary at 42°10′ N, 67°09.38′ W. The proposed boundary then follows the U.S.-Canada maritime boundary north to the intersection of 44°49.727′ N, 66°57.952′ W. From this point, moving southwest along the coast of Maine, the specific area is located seaward of the Maine exemption line developed for the Atlantic Large Whale Take Reduction Plan to the point (43°02.55′ N, 70°43.33′ W) on the coast of New Hampshire south of Portsmouth, NH. The boundary of the proposed area then follows the coastline southward along the coasts of New Hampshire and Massachusetts along Cape Cod to Provincetown southward along the eastern edge of Cape Cod to the southern tip of Monomoy Island. As noted, the specific area includes the large embayments of Cape Cod Bay and Massachusetts Bay but does not include inshore areas, bays, harbors and inlets. In addition, the specific area does not include waters landward of the 72 COLREGS lines (33 CFR part 80) as described below.
The essential features of right whale calving habitat are dynamic in their distributions throughout the South Atlantic Bight in that they vary over both time and space, and their variations do not necessarily correlate with each other. Calving right whales therefore likely select areas containing varying combinations of the preferred ranges of the essential features available within the SAB, as identified previously, depending on factors such as the weather (
In order to identify specific areas that may contain the essential features, we used analyses based on two predictive habitat models (Garrison (2007) and Keller
The Garrison (2007) and Keller
Because the models used by Garrison (2007) and Keller
To determine the boundaries of the specific area containing the essential features identified for North Atlantic right whale calving, we overlaid two ArcGIS shape files generated by the habitat models as follows: 1) The 75th percentile reported by Garrison (2007) and Keller
Based on the information from these models and other information previously described, which we consider to be the best available information, the southeast right whale calving area consists of all marine waters from Cape Fear, North Carolina, southward to 29° N latitude (approximately 43 miles north of Cape Canaveral, Florida) within the area bounded on the west by the shoreline and the 72 COLREGS lines, and on the east by rhumb lines connecting the specific points described below.
Based on the prior discussion and consistent with our regulations (50 CFR 424.12(d)), we identified one “specific area” within the geographical area occupied by the species, at the time of listing, that contains the essential features for calving right whales in the southeastern U.S. (Figure 2). This area comprises waters of Brunswick County, North Carolina; Horry, Georgetown, Charleston, Colleton, Beaufort, and Jasper Counties, South Carolina; Chatham, Bryan, Liberty, McIntosh, Glynn, and Camden Counties, Georgia; and Nassau, Duval, St. John's, Flagler, and Volusia Counties, Florida.
Specific areas within the geographical area occupied by a species may be designated as critical habitat only if they contain physical or biological features that “may require special management considerations or protection.” To meet the definition of critical habitat, it is not necessary that the features currently require special management considerations or protection, only that they
As summarized in the following sections, the essential features of right whale foraging habitat may require special management considerations or protections because of possible negative impacts from the following activities and events: (1) Zooplankton fisheries; (2) effluent discharge from municipal outfalls; (3) discharges and spills of petroleum products to the marine environment as a result of oil and gas exploration, development and transportation; and (4) climate change.
The essential foraging habitat features that may be affected by zooplankton fisheries are late stage
While directed zooplankton fisheries have primarily focused efforts on the larger krill species, with the most significant harvests taking place in Antarctica (targeting
Several analyses predict the demand for krill will increase, including increased future demands for pharmaceutical and aquaculture products derived from copepods (Nicol and Endo (1997), Payne
The essential biological features of foraging habitat in the Gulf of Maine and Georges Bank region may be negatively affected if worldwide demand for
Several municipalities from Maine to Massachusetts have waste discharge facilities that empty into the Gulf of Maine. These discharges as well as coastal runoff result in increased nutrient inputs to the ocean. Increased nutrient input in the Gulf of Maine region may result in changes to the overall phytoplankton community structure and enhance nuisance and/or less desirable forage species. These changes may result in changes in productivity and/or changes in the distribution and densities of
While a single outfall facility may not have a significant impact on the entire Gulf of Maine ecosystem, the cumulative impacts of all sewage outfalls may pose the need for management considerations or protection for
In 2002, Provincetown Center for Coastal Studies (PCCS) documented a “shift from the predominant winter-spring zooplankton resources,
The MWRA monitoring program further noted that though the structure of the zooplankton community in 2005 was similar to many earlier years, there was a measurable decrease in total zooplankton abundance during 2001 through 2005 compared to the baseline period. Overall lower abundance during the late spring and early summer and during the fall was observed across Massachusetts Bay, but not in the shallower waters of Boston Harbor or Cape Cod Bay (Werme and Hunt 2006).
These observations support the hypothesis that with increased nutrient input and increased primary productivity, Massachusetts Bay plankton communities could shift to being dominated by
Currently, there is no oil or natural gas exploration or development activity in the Gulf of Maine and Georges Bank area. Since 1980, all of the area has been under a moratorium on such natural resource development. A leasing moratorium has also been in effect on the Canadian portion of Georges Bank since 1988. The Nova Scotian and Canadian governments extended the moratorium on exploration of eastern Georges Bank through 2015, matching the adjoining U.S. moratorium. Outside the area under the moratorium, oil and gas exploration and production has proceeded in Canadian waters offshore of Nova Scotia.
There is reason to believe that oil or natural gas exploration and development may occur at some point in the future in the specific area proposed for designation as critical foraging habitat for right whales. There is economic interest in opening up new domestic sources for oil and gas, including OCS lands within the specific area proposed for designation as critical foraging habitat for right whales. In addition, emerging deep water drilling technologies now provide the potential to explore deep water basins and other areas within the Gulf of Maine and Georges Bank region.
Activities associated with offshore oil and gas exploration, development, and production include drilling, extraction, and transportation. Oil spills and discharges are associated with all of these activities. Very low concentrations (from less than 1µg/l to 1 mg/l) of oil and petroleum hydrocarbons have been found to have harmful effects on various marine organisms in laboratory tests (Jacobson and Boylan 1973, Johnson 1977, Steele 1977, Kuhnhold
As discussed in the Biological Source Document (NMFS 2014a), both acute and chronic exposure to oil pollution could result in changes to the species composition of phytoplankton communities. It is conceivable that species replacing one another due to differential sensitivities to oil exposure could result in shifts in phytoplankton community structure. Such shifts may then negatively affect the abundance, availability, and density of aggregations of late-stage
The projected effects of global climate change include a variety of potential impacts based on a variety of greenhouse gas emissions scenarios, including: Increased average global surface air temperatures; sea level rise, increased global precipitation; and increased atmospheric carbon dioxide concentrations and ocean acidification (IPCC 20142007).
As discussed in detail in the Biological Source Document (NMFS 2014a), there are a number of ways that global climate change may affect the biological and physical features of foraging habitat essential to the conservation of the North Atlantic right whale. The distribution of marine fish and plankton are predominantly determined by climate. The distribution of marine species in U.S. waters is moving northward, and the timing of plankton blooms is shifting (Karl
The predicted range of increase in water temperatures, combined with other factors such as increased precipitation and runoff, may alter seasonal stratification in the northeast coastal waters. Increased stratification of the water column in the Gulf of Maine region could affect copepod abundance and densities by limiting or preventing the exchange of surface and nutrient rich deep water. Increased stratification could affect primary and secondary productivity by altering the composition of phytoplankton and zooplankton (Mountain 2002). This in turn may negatively impact the abundance and distribution of
Diapausing
Given these expected negative impacts to the essential features for foraging, NMFS concludes these features may require special management considerations or protections due to climate change.
As summarized in the following sections, the essential features of right whale calving habitat may require special management considerations or protections because of possible negative impacts from the following activities and events: Offshore energy development, large-scale offshore aquaculture operations, and global climate change. These activities and their potential broad-scale impacts on the essential features are discussed in detail in the Biological Source Document (NMFS 2014a)
There is growing interest in diversifying domestic energy sources, including offshore oil and gas exploration and production (including liquid natural gas (LNG) terminals), exploration and development of techniques for mining mineral deposits from the continental shelf, and development and production of offshore energy alternatives in the Atlantic (
Availability of the essential features may be limited by large arrays or fields of permanent structures that may act as physical barriers and prevent or limit the ability of right whale mothers and calves to move about and find (“select”) the optimal combinations of the essential features. The effective size of offshore energy facilities includes and is increased by all of the associated structures, lines and cables, and activities and noise. There are numerous floating, submerged, and emergent structures, mooring lines, and transmission cables associated with large ocean energy facilities (DOE 2009). Larger whales may have difficulty passing through an energy facility with numerous, closely spaced mooring or transmission lines (DOE 2009). If the density of structures, lines, and cables associated with a facility is sufficiently great and spacing is close, cables could have a “wall effect” that could force whales around, or preclude them from using the areas (Boehlert
Therefore, these facilities may limit the availability of the essential features such that right whales are not able to move about, find and use the optimal combinations of the features necessary for successful calving and rearing. These are negative impacts on what makes these features essential to the conservation of the species. Therefore, we conclude the essential features for right whale calving habitat may require special management considerations or protections.
Approximately 20 percent of U.S. aquaculture production is based on marine species (NOAA 2010), and there is growing interest in expanding aquaculture operations to offset the increasing demand for seafood (NOAA 2007). Recent advances in offshore aquaculture technology have resulted in several commercial finfish and shellfish operations in more exposed, open-ocean locations (
Large-scale aquaculture operations involve numerous floating or submerged structures and mooring lines, and associated activities and noise. Offshore aquaculture operations utilize large net-pens (
Installation and operation of large-scale offshore aquaculture facilities are not likely to negatively impact the preferred ranges of sea surface roughness, sea surface temperatures, or water depths, in that it will not result in lowering or raising the available value ranges for these features. However, like offshore energy development, the construction and operation of large-scale offshore aquaculture facilities within the specific calving area have the potential to limit the availability of the essential features. Large scale aquaculture facilities could force whales to abandon these areas (Young 2001) by acting as a barrier, or limiting the whales' ability to move about, and find and use the optimal combinations of essential features necessary for successful calving and rearing. Installation and operation of these facilities may also fragment the large contiguous areas containing optimal combinations of the essential features needed for calving and rearing. These are negative impacts on what makes these features essential to the conservation of the species. Therefore, we conclude the essential features for right whale calving habitat may require special management considerations or protections.
Global climate change and its potential effects on the environment is a very complex issue. Several of the projected future effects of global climate change are discussed previously.
In the specific area identified as potential right whale calving critical habitat, sea surface temperatures are influenced by the “Atlantic Multi-decadal Oscillation,” or AMO. The essential feature of sea surface temperature may be negatively impacted by global climate change, depending on the degree to which the influence of the AMO is reduced. The AMO is an ongoing series of long-duration changes in the sea surface temperature of the North Atlantic Ocean, with cool and warm phases that may last for periods of 20 to 40 years and result in a difference of about 1 °F between extremes (NOAA AOML 2010). The AMO also influences the frequency of hurricanes that originate in the Atlantic Warm Pool (AWP), with fewer major hurricanes and hurricanes making landfall during AMO cool phases.
However, over the next generation, global climate change is projected to be nonlinear, and it is likely that the AMO will have less influence over sea surface temperature oscillations than anthropogenic global climate change in the North Atlantic (Enfield and Serrano 2009). Depending on the degree to which the influence of the AMO is reduced, sea surface temperatures may increase by 1 to 3 °C IPCC AR4 (2014). There is the potential that the preferred temperature range (7 °C to 17 °C) identified for right whales may no longer be available within the specific area, or may become available only within smaller areas co-occurring with the preferred water depth and sea surface conditions, thereby reducing the area available to support the key
Further, relaxation of the present rate of increase in hurricane activity may never occur (Enfield and Serrano 2009), potentially impacting seasonal sea state conditions in the specific area by increasing the frequency of major hurricanes passing through the specific area. The essential physical features for North Atlantic right whales on their calving grounds are calm sea surface conditions associated with Force 4 or less on the Beaufort Scale. Neonate right whale calves are relatively weak swimmers and are more vulnerable to changes from calm to rough sea state conditions.
We conclude global climate change may result in negative impacts to the preferred ranges identified for the essential features, and to the ability of these features to support successful calving. Therefore, the essential features may require special management considerations or protections to preserve the ability of these features to provide for successful calving and rearing of North Atlantic right whales.
ESA section 3(5)(A)(ii) defines critical habitat to include specific areas outside the geographical area occupied if the areas are determined by the Secretary to be essential for the conservation of the species. Regulations at 50 CFR 424.12(e) specify that we shall designate as critical habitat areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species. Our regulations at 50 CFR 424.12(h) also state: “Critical habitat shall not be designated within foreign countries or in other areas outside of United States jurisdiction.” At the present time, the geographical area occupied by listed North Atlantic right whales which is within the jurisdiction of the United States is limited to waters off the U.S. east coast from Maine through Florida, seaward to the boundary of the U.S. Exclusive Economic Zone. As discussed previously, the Gulf of Mexico is not considered part of the geographical area occupied by the species, nor do we consider it an unoccupied area essential to the species' conservation given the rare, errant use of the area by right whales in the past. We have not identified any other areas outside the geographical area occupied by the species that are essential for their conservation and therefore are not proposing to designate any unoccupied areas as critical habitat for the North Atlantic right whale.
Section 4(a)(3)(B)(i) prohibits designating as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense (DOD), or designated for its use, that are subject to an integrated natural resources management plan (INRMP), if we determine that such a plan provides a benefit to the species (16 U.S.C. 1533(a)(3)(B)).
No areas within the specific areas being proposed for designation are covered by INRMPs; therefore, there are no military lands ineligible for designation as critical habitat within the proposed areas of Unit 1 and Unit 2.
The foregoing discussion described the specific areas within U.S. jurisdiction that fall within the ESA section 3(5) definition of critical habitat in that they contain the physical and biological features essential to the North Atlantic right whale's conservation that may require special management considerations or protection. Section 4(b)(2) of the ESA requires that we consider the economic impact, impact on national security, and any other relevant impact, of designating any particular area as critical habitat. Additionally, the Secretary has the discretion to consider excluding any area from critical habitat if she determines the benefits of exclusion (that is, avoiding some or all of the impacts that would result from designation) outweigh the benefits of designation based upon the best scientific and commercial data available. The Secretary may not exclude an area from designation if exclusion will result in the extinction of the species. Because the authority to exclude is discretionary, exclusion is not required for any particular area under any circumstances.
The following discussion of impacts summarizes the analysis contained in our Draft ESA Section 4(b)(2) Report (NMFS 2014b), which identifies the economic, national security, and other relevant impacts that we projected would result from including each of the two specific areas in the proposed critical habitat designation. We considered these impacts when deciding whether to exercise our discretion to propose excluding particular areas from the designation. Both positive and negative impacts were identified and considered (these terms are used interchangeably with benefits and costs, respectively). Impacts were evaluated in quantitative terms where feasible, but qualitative appraisals were used where that is more appropriate to particular impacts. The Draft ESA Section 4(b)(2) Report (NMFS 2014b) is available on NMFS' Greater Atlantic Region Web site at [
The primary impacts of a critical habitat designation result from the ESA section 7(a)(2) requirement that Federal agencies ensure their actions are not likely to result in the destruction or adverse modification of critical habitat, and that they consult with NMFS in fulfilling this requirement. Determining these impacts is complicated by the fact that section 7(a)(2) also requires that Federal agencies ensure their actions are not likely to jeopardize the species' continued existence. One incremental impact of designation is the extent to which Federal agencies modify their proposed actions to ensure they are not likely to destroy or adversely modify the critical habitat beyond any modifications they would make because of listing and the jeopardy requirement. When the same modification would be required due to impacts to both the species and critical habitat, the impact of the designation is co-extensive with the ESA listing of the species (
The Draft ESA Section 4(b)(2) Report describes the projected future federal activities that would trigger section 7 consultation requirements because they may affect the essential features, and consequently may result in economic costs or negative impacts. Additionally, the report describes broad categories of project modifications that may reduce impacts to the essential features, and states whether the modifications are likely to be solely a result of the critical habitat designation or co-extensive with another regulation, including the ESA listing of the species. The report also identifies the potential national security and other relevant impacts that may arise due to the proposed critical habitat designation, such as positive impacts that may arise from conservation of the species and its habitat, state and local
Economic impacts of the critical habitat designation result through implementation of section 7 of the ESA in consultations with Federal agencies to ensure their proposed actions are not likely to destroy or adversely modify critical habitat. These economic impacts may include both administrative and project modification costs; economic impacts that may be associated with the conservation benefits of the designation are described later.
We examined the ESA section 7 consultation record over the last 10 years, as compiled in our Public Consultation Tracking System (PCTS) database, to identify the types of Federal activities that may adversely affect North Atlantic right whale critical habitat. We requested that federal action agencies provide us with information on future consultations if we omitted any future actions likely to affect the proposed critical habitat. No new activities were identified through this process. Of the types of past consultations that “may affect” some or all of the essential features in either unit of proposed critical habitat, we determined that no activities would solely affect the essential features. That is, all categories of the activities identified would also require consultation for potential impacts to the listed species.
Five categories of activities were identified as likely to recur in the future and have the potential to affect the essential features:
1. Environmental Protection Agency (EPA) Clean Water Act permitting or management of pollution discharges through the NPDES programs in Unit 1;
2. United States Coast Guard (USCG) authorization or use of dispersants during an oil spill response in Unit 1;
3. U.S. Army Corps of Engineers (USACE) maintenance dredging or permitting of dredge and disposal activities under the Clean Water Act in Unit 2;
4. USACE permitting of marine construction, including shoreline restoration and artificial reef placement under the Rivers and Harbors Act and/or Clean Water Act in Unit 2;
5. The Maritime Administration's permitting of siting and construction of offshore liquefied natural gas facilities in Unit 1.
As discussed in more detail in our Draft ESA Section 4(b)(2) Report (NMFS, 2014b), we determined that two of these federal actions, Water Quality/NPDES related actions and oil spill response activities implemented respectively by the EPA and the USCG, could result in incremental impacts from section 7 consultations related to the proposed critical habitat.
Additionally, we identified four categories of activities that have not occurred in the proposed areas in the past but based on available information and discussions with action agencies, may occur in the future. If they do occur, these activities may adversely affect the essential features. These projected activities are: Oil and gas exploration and development activities, directed copepod fisheries, offshore alternative energy development activities, and marine aquaculture. As with past or ongoing federal activities in the proposed critical habitat areas, these four categories of projected future actions may trigger consultation because they have the potential to adversely affect both the essential features and the whales themselves. Three categories of future activities were judged as being likely to have incremental impacts due to the proposed critical habitat: Oil and gas exploration and development activities (Unit 1), directed copepod fishery (Unit 1), and offshore alternative or renewable energy activities (Unit 2). Consequently, costs of project modifications required through section 7 were considered to be incremental impacts of the proposed designation.
In order to avoid underestimating impacts, we assumed that all projected categories of future actions resulting in incremental impacts to essential features will require formal consultations, in order to estimate both administrative and project modification costs. This assumption likely results in an overestimation of the number of future formal consultations.
Of the ongoing or current activities expected to recur in Unit 1, EPA's activities under the Clean Water Act related to water quality and NPDES programs and the USCG's authorization or use of dispersants during an oil spill response are likely to result in incremental impacts due to effects on the essential features than the species. Based on our analysis of past consultation history we project that over the next ten years, there will be 21 consultations involving Water Quality/NPDES activities. We also project that there will be 6 consultations involving oil spill response.
Of the past or ongoing activities expected to recur in Unit 2, all the federal activities identified as having the potential to adversely affect the essential features also have the potential to adversely affect right whales. These activities are not likely to require additional project modifications to address impacts to essential features beyond those that may be required to address impacts to the whales. Therefore we conclude that the only incremental costs resulting from consultations for these activities are the additional administrative costs associated with analysis of impacts to the essential features.
Consultations resulting from activities affecting the essential features include both administrative and project modification costs. Administrative costs include the cost of time spent in meetings, preparing letters, and in some cases, developing a biological assessment and biological opinion, identifying and designing RPMs, and so forth. For this impacts report, we estimated per-project administrative costs based on IeC 2013. That impacts report estimates administrative costs for different categories of consultations as follows: (1) New consultations resulting entirely from critical habitat designation; (2) new consultations considering only adverse modification (unoccupied habitat); (3) re-initiation of consultation to address adverse modification; and (4) additional consultation effort to address adverse modification in a new consultation. Given that all the consultations we project to result from this proposed rulemaking will be co-extensive consultations on new actions that would be evaluating impacts to the whales as well as impacts to critical habitat, the administrative costs would all be in category 4 above.
As previously mentioned, we assumed that all future activities that may affect the proposed essential features will require formal consultations. Based on IeC 2013, we project that each formal consultation will result in the following additional costs to address critical habitat impacts: $1,400 in NMFS'costs; $1,600 in action agency costs; and $880 in third party (
Of the four categories of activities that have not occurred in the proposed areas in the past but may occur in the future, and which have the potential to adversely affect the essential features resulting in ESA section 7 consultations, only oil and gas exploration and development and a directed copepod fishery in the proposed foraging area,
In our impacts analysis, we assumed that categories of activities that “may affect” the proposed essential features may result in the need for some sort of project modification to avoid destruction or adverse modification of critical habitat. Thus, we considered the range of broad categories of modifications we might seek for these activities to avoid negative impacts to the essential features. The cost of project modifications depends on the specific project and the circumstances of the actual project, for example, its size, timing and location. Although we have a projection of the number of future formal consultations, we were unable to identify the exact modification or combinations of modifications that would be required for any future actions. Thus, it is not possible to estimate the costs for project modifications that would be required to address adverse effects that may occur from all projected future agency actions requiring consultation. The same limitation applies to projecting the type, size, scale, and thus cost, of project modifications that may be necessary to avoid jeopardizing the whales' existence—we are only able to identify broad categories of types of potential future project modifications. The same categories of potential project modifications that might be recommended to avoid impacts to the species could also address potential impacts to the essential features. In our analysis, we identified where it is possible that unique modifications could be required to address impacts to critical habitat, above and beyond those needed to address impacts to the whales.
Previous critical habitat designations have recognized that impacts to national security result if a designation would trigger future ESA section 7 consultations because a proposed military activity “may affect” the physical or biological feature(s) essential to the listed species' conservation. Anticipated interference with mission-essential training or testing or unit readiness, either through delays caused by the consultation process or through expected requirements to modify the action to prevent adverse modification of critical habitat, has been identified as a negative impact of critical habitat designations. (See,
Based on the past consultation history and information submitted by DOD for this analysis, it is unlikely that consultations with respect to DOD activities will be triggered as a result of the proposed critical habitat designation.
On September 21, 2009, and again in November 2010, NMFS sent letters to DOD requesting information on national security impacts of the proposed critical habitat designation, and we received responses from the Navy, United States Marine Corps (USMC), USCG, Department of Homeland Security (DHS), and the Air Force (USAF). We discuss the information contained within the responses thoroughly in the Draft Section 4(b)(2) Report (NMFS 2014b) and summarize the information below.
The Navy noted that several of the areas under consideration for designation as right whale critical habitat overlap with important Navy testing and training or operational areas. The Navy stated that while current activities will not destroy or adversely modify the essential features of right whale critical habitat, national security impacts would result if mitigation measures to protect right whales themselves, currently in place in existing critical habitat, were required for naval activities conducted within the boundaries of the expanded proposed critical habitat. However, measures to protect whales themselves are not an impact of the critical habitat designation.
In 2013, NMFS completed consultation with the Navy on its Atlantic Fleet Training and Testing activities (AFFT) conducted within the expanded areas proposed in this rulemaking as critical habitat and concluded that these activities would not likely jeopardize the continued existence of North Atlantic Right Whales. As part of the 4(b)(2) analysis for this proposed critical habitat designation, NMFS reviewed the AFTT activities conducted within the areas proposed as critical habitat and concluded the Navy's activities would not likely affect the proposed essential features of right whale habitat. U.S. Navy training and testing activities are not likely to affect the physical or biological features essential to foraging in Unit 1, or fragment large, continuous areas of the essential features or alter the optimal ranges of these essential features in Unit 2 such that they are rendered unsuitable for calving, and calf survival.
The USCG considers it unlikely that its exercises, operations, and training associated with National and Homeland Security, separately or in aggregate, would affect the essential features for foraging or calving right whale habitat. The USCG asserted in its response that should new or existing regulations intended to protect the species be applied to the expanded area under consideration for designation as critical habitat, National and Homeland Security impacts would likely result. As with naval actions discussed previously, measures imposed on USCG activities to prevent or minimize harm to whales themselves are not an impact of the critical habitat designation.
The Air Force noted in its reply that while the critical habitat area proposed is heavily used for flight operations, restrictions on flight operations are not currently imposed in critical habitat for right whales. Based on our analysis, Air Force flights in the proposed area are not likely to affect the essential features; therefore, there would be no need for consultations or operation modifications.
Based on a review of the information provided by the Navy, USMC, and USCG, DHS, and USAF, and on our review of the activities conducted by these entities associated with national security within the specific areas proposed for designation as right whale critical habitat, their activities have no routes of potential adverse effects to the proposed essential features and will not require consultation to prevent adverse effects to critical habitat (see Draft Section 4(b)(2) Report, NMFS 2014b). Therefore, based on information available at this time, we do not anticipate there will be national security impacts associated with the proposed critical habitat for the North Atlantic right whale.
Other relevant impacts of critical habitat designations can include conservation benefits to the species and to society, and impacts to governmental and private entities. Our Draft Section 4(b)(2) Report (NMFS 2014b) discusses conservation benefits of designating the two specific areas, and the benefits of
As discussed in the Draft Section 4(b)(2) Report (NMFS 2014b) and summarized here, large whales, including the North Atlantic right whale, currently provide a range of benefits to society. Given the positive benefits of protecting the physical and biological features essential to the conservation of the right whale, this protection will in turn contribute to an increase in the benefits of this species to society in the future as the species recovers. While we cannot quantify nor monetize these benefits, we believe they are not negligible and would be an incremental benefit of this designation. However, although the features are essential to the conservation of right whales, critical habitat designation alone will not bring about the recovery of the species. The benefits of conserving right whales are, and will continue to be, the result of several laws and regulations.
We identified in the Draft Section 4(b)(2) Report (NMFS 2014b) both consumptive (
Further, the economic value of right whales can be estimated in part by such metrics as increased visitation and user enjoyment measured by the value of whale watching activities.
Education and awareness benefits stem from the critical habitat designation when non-federal government entities or members of the general public responsible for, or interested in, North Atlantic right whale conservation change their behavior or activities when they become aware of the designation and the importance of the critical habitat areas and features. Designation of critical habitat raises the public's awareness that there are special considerations that may need to be taken within the area. Similarly, state and local governments may be prompted to carry out programs to complement the critical habitat designation and benefit the North Atlantic right whale. Those programs would likely result in additional impacts of the designation. However, it is impossible to quantify the beneficial effects of the awareness gained or the secondary impacts from state and local programs resulting from the critical habitat designation.
On the basis of our impacts analysis, we are not proposing to exercise our discretion to propose excluding any particular areas from the proposed critical habitat designation.
We could not reasonably quantify the total economic costs and benefits of the proposed critical habitat designation due to limited information. Nevertheless, we believe that our characterization of the types of costs and benefits that may result from the designation, in particular circumstances, may provide some useful information to Federal action agencies and permit applicants that may implement the types of activities discussed in our analyses within the designated critical habitat. We have based the proposed designation on very specifically defined features essential to the species' conservation, which allowed us to identify the few, specific effects of federal activities that may adversely affect such features and thus require section 7 consultation under the ESA. We have discussed to the extent possible the circumstances under which section 7 impacts will be incremental impacts of this proposed rule. We believe that the limitations of current information about potential future projects do not allow us to be more specific in our estimates of the section 7 impacts (administrative consultation and project modification costs) of the proposed designation.
We have analyzed the economic, national security, and other relevant impacts of designating critical habitat. While we have utilized the best available information and an approach designed to avoid underestimating impacts, many of the potential impacts are speculative and may not occur in the future. Our conservative identification of potential incremental economic impacts indicates that any such impacts would be very small, resulting from very few (less than 17) federal section 7 consultations annually. Further, the analysis indicates that there is no particular area within the areas proposed for designation as critical habitat where economic impacts would be particularly high or concentrated. No impacts to national security are expected. Other relevant impacts include conservation benefits of the designation, both to the species and to society. Because the features that form the basis of the critical habitat designation are essential to the conservation of North Atlantic right whales, the protection of critical habitat from destruction or adverse modification may at minimum prevent loss of the benefits currently provided by the species and may contribute to an increase in the benefits of these species to society in the future. While we cannot quantify nor monetize the benefits, we believe they are not negligible and would be an incremental benefit of this designation. Moreover, our analysis indicates that all potential future section 7 consultations on impacts to critical habitat features would also be conducted for the projects' potential impacts on the species, resulting in at least partial co-extensive impacts of the designation and the baseline listing of the species. Therefore, we have concluded that there is no basis to exclude any particular area from the proposed critical habitat.
We are proposing to designate approximately 29,945 nm
The specific area where the essential foraging features are located (“Unit 1”) is in the Gulf of Maine and Georges Bank region and covers a total area of approximately 21,334 nm
1. The physical oceanographic conditions and structures of the Gulf of Maine and Georges Bank region that combine to distribute and aggregate
2. Low flow velocities in Jordan, Wilkinson, and Georges Basins that allow diapausing
3. Late stage
4. Diapausing
The specific area where the essential calving features are located (“Unit 2”) is in the South Atlantic Bight and covers a total area of approximately 8,611 nm
1. Sea surface conditions associated with Force 4 or less on the Beaufort Scale,
2. Sea surface temperatures of 7 °C to 17 °C, and
3. Water depths of 6 to 28 meters.
No unoccupied areas are proposed for designation of critical habitat.
Section 7(a)(2) of the ESA requires Federal agencies, including NMFS, to insure that any action authorized, funded, or carried out by the agency (agency action) does not jeopardize the continued existence of any threatened or endangered species or destroy or adversely modify designated critical habitat. Federal agencies are also required to confer with NMFS regarding any actions likely to jeopardize a species proposed for listing under the ESA, or likely to destroy or adversely modify proposed critical habitat, pursuant to section 7(a)(4). A conference involves informal discussions in which NMFS may recommend conservation measures to minimize or avoid adverse effects. The discussions and conservation recommendations are to be documented in a conference report provided to the Federal agency. If requested by the Federal agency, a formal conference report may be issued, including a biological opinion prepared according to 50 CFR 402.14. A formal conference report may be adopted as the biological opinion when the species is listed or critical habitat designated, if no significant new information or changes to the action alter the content of the opinion. When a species is listed or critical habitat is designated, Federal agencies must consult with NMFS on any agency actions to be conducted in an area where the species is present and that may affect the species or its critical habitat. During the consultation, NMFS would evaluate the agency action to determine whether the action may adversely affect listed species or critical habitat and issue its findings in a biological opinion. If NMFS concludes in the biological opinion that the agency action would likely result in the destruction or adverse modification of critical habitat, NMFS would also recommend any reasonable and prudent alternatives to the action. Reasonable and prudent alternatives are defined in 50 CFR 402.02 as alternative actions identified during formal consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that would avoid the destruction or adverse modification of critical habitat. Regulations at 50 CFR 402.16 require federal agencies that have retained discretionary involvement or control over an action, or where such discretionary involvement or control is authorized by law, to reinitiate consultation on previously reviewed actions in instances where: (1) Critical habitat is subsequently designated; or (2) new information or changes to the action may result in effects to critical habitat not previously considered in the biological opinion. Consequently, some Federal agencies may request reinitiation of consultation or conference with NMFS on actions for which formal consultation has been completed, if those actions may affect designated critical habitat or adversely modify or destroy proposed critical habitat.
Activities subject to the ESA section 7 consultation process include activities on Federal lands and activities on private or state lands requiring a permit from a Federal agency or some other Federal action, including funding. In the marine environment, activities subject to the ESA section 7 consultation process include activities in Federal waters and in state waters that (1) have the potential to affect listed species or critical habitat, and (2) are carried out by a Federal agency, need a permit or license from a Federal agency, or receive funding from a Federal agency. ESA section 7 consultation would not be required for Federal actions that do not affect listed species or critical habitat and for actions in the marine environment or on non-Federal and private lands that are not Federally funded, authorized, or carried out.
ESA section 4(b)(8) requires in any proposed or final regulation to designate or revise critical habitat an evaluation and brief description of those activities (whether public or private) that may adversely modify such habitat or that may be affected by such designation. A variety of activities may affect the proposed critical habitat and may be subject to the ESA section 7 consultation process when carried out, funded, or authorized by a Federal agency. As indicated above and in the 4(b)(2) report, activities (3) through (6) and (9) are only predicted to result in incremental administrative costs of consultation. As discussed previously, the activities most likely to be affected by this critical habitat designation, once finalized, are: (1) Water Quality/NPDES permitting and regulatory activities (Unit 1); (2) Oil Spill Response (Unit 1); (3) Maintenance Dredging and Disposal or Dredging (Unit 2); (4) Construction Permitting (Unit 2); (5) Offshore Liquid Natural Gas Facilities (Unit 1); (6) Oil and Gas Exploration and Development (Unit 1); (7) Offshore alternative energy development activities (Unit 2); (8) Directed copepod fisheries (Unit 1); and (9) Marine aquaculture (Unit 2). Private entities may also be affected by this proposed critical habitat designation if a Federal permit is required, Federal funding is received, or the entity is involved in or receives benefits from a Federal project. These activities will need to be evaluated with respect to their potential to destroy or adversely modify critical habitat. Changes to the actions to avoid destruction or adverse modification of proposed critical habitat may result in changes to some activities. Please see the ESA Section 4(b)(2) Report (NMFS 2014b) for more details and examples of changes that may need to occur in order for activities to minimize or avoid destruction or adverse modification of designated critical habitat. Questions regarding whether specific activities will constitute destruction or adverse modification of critical habitat should be directed to NMFS (see
We request that interested persons submit comments, information, maps, and suggestions concerning this proposed rule during the comment period (see
50 CFR 424.16(c)(3) requires the Secretary of Commerce (Secretary) to promptly hold at least one public hearing if any person requests one within 45 days of publication of a proposed rule to designate critical habitat. Such hearings provide the opportunity for interested individuals and parties to give comments, exchange information and opinions, and engage in a constructive dialogue concerning this proposed rule.
The data and analyses supporting this proposed action have undergone a pre-dissemination review and have been determined to be in compliance with applicable information quality guidelines implementing the Information Quality Act (IQA) (Section 515 of Public Law 106–554). On July 1, 1994, a joint USFWS/NMFS policy for peer review was issued stating that the Services would solicit independent peer review to ensure the best biological and commercial data is used in the development of rulemaking actions and draft recovery plans under the ESA (59 FR 34270). In addition, on December 16, 2004, the Office of Management and Budget (OMB) issued its Final Information Quality Bulletin for Peer Review (Bulletin). The Bulletin was published in the
The Draft Biological Source Document (NMFS 2014a) and Draft Section 4(b)(2) Report (NMFS 2014b) supporting this proposed critical habitat rule are considered influential scientific information and subject to peer review. To satisfy our requirements under the OMB Bulletin, we obtained independent peer review of those draft documents, which support this critical habitat proposal, and incorporated the peer review comments prior to dissemination of this proposed rulemaking. For this action, compliance with the OMB Peer Review Bulletin satisfies any peer review requirements under the 1994 joint peer review policy.
The Draft Biological Source Document (2014a) and Draft ESA Section 4(b)(2) Report (NMFS 2014b) prepared in support of this proposal for critical habitat for the North Atlantic right whale are available on our Web site at
This proposed rule has been determined to be significant under Executive Order (E.O.) 12866.
An environmental analysis as provided for under the National Environmental Policy Act (NEPA) for critical habitat designations made pursuant to the ESA is not required. See
We prepared an initial regulatory flexibility analysis (IRFA) pursuant to section 603 of the Regulatory Flexibility Act (5 U.S.C. 601
This proposed action would replace the 1994 critical habitat for right whales in the North Atlantic with two new areas of critical habitat for the North Atlantic right whale pursuant to ESA sections 4(a)(3)(A)(i) and 4(b)(3)(D). The areas under consideration contain approximately 29,953 nm
The proposed critical habitat rule does not directly apply to any particular entity, small or large. The rule would be implemented under ESA Section 7(a)(2), which requires that Federal agencies insure, in consultation with NMFS, that any action they authorize, fund, or carry out is not likely to destroy or adversely modify critical habitat. That consultation process may result in the recommendation or requirement of project modifications in order to protect critical habitat.
The proposed rule, in conjunction with the section 7(a)(2) consultation process, may indirectly affect small businesses, small nonprofit organizations, and small governmental jurisdictions if they engage in activities that may affect the essential features identified in this proposed designation and if they receive funding or authorization for such activity from a federal agency. Such activities would trigger ESA section 7 consultation requirements and potential requirements to modify proposed activities to avoid destroying or adversely modifying the critical habitat. The proposed rule may also indirectly benefit small entities that benefit from or strive for the protection of the essential features, such as commercial fishing and whale watching industries. The past consultation record from which we have projected likely federal actions over the next 10 years indicates that applicants for federal permits or funds have included small entities in the past.
A review of historical ESA section 7 consultations involving projects in the areas proposed for designation is described in Section 3.2 of the Draft ESA Section 4(b)(2) Report prepared for this rulemaking. We have concluded, based on our review of past section 7 consultations, and analyses in our draft 4(b)(2) report (NMFS 2014b), that no category of activity would trigger consultation on the basis of the critical habitat designation alone. Based on our review of past consultations, we have identified five categories of activities that may affect the proposed critical habitat: in Unit 1 National Pollution Discharge Elimination System (NPDES) permitting and oil spill response and; in Unit 2 dredging and spoil disposal, marine construction permitting, and construction, and operation of energy facilities. Of those, we identified the following categories of actions that may have incremental impacts: for Unit 1, water quality/NPDES and, oil spill response. We did not identify any for Unit 2. We also identified four new (
While we cannot determine relative numbers of small and large entities that may be affected by this proposed rule, there is no indication that affected project applicants would be limited to, nor disproportionately comprise, small entities. It is unclear whether small entities would be placed at a competitive disadvantage compared to large entities. However, as described in the Draft ESA Section 4(b)(2) Report (NMFS 2014b), consultations and project modifications will be required based on the type of permitted action and its associated impacts on the essential critical habitat feature. Because the costs of many potential project modifications that may be required to avoid adverse modification of critical habitat are unit costs such that total project modification costs would be proportional to the size of the project, it is not unreasonable to assume that larger entities would be involved in implementing the larger projects with proportionally larger project modification costs.
It is also unclear whether the proposed rule will significantly reduce profits or revenue for small businesses. As discussed throughout the Draft ESA Section 4(b)(2) Report (NMFS 2014b), we assumed all of the future consultations that may result in incremental costs attributable to the proposed critical habitat will be formal consultations. This conclusion likely results in an overestimate of the impacts of the proposed action. In addition, as stated previously, though it is not possible to determine the exact cost of any given project modification resulting from consultation, the smaller projects most likely to be undertaken by small entities would likely result in relatively small modification costs.
Economic impacts of the proposed action consist of two main components: administrative costs, and costs of modifying projects in order to avoid destroying or adversely modifying the critical habitat. These costs may be incurred by NMFS, the Federal action agency, or a third party proposing the activity in areas proposed as critical habitat. The only quantitative cost estimates we can provide for this proposed action are the estimated administrative costs associated with ESA section 7 consultations required due to potential impacts to both the proposed critical habitat and the listed species. Based on our analysis in the 4(b)(2) report (NMFS 2014b), we have identified categories of federal actions that “may affect” the essential features in the future, but all of these projects will also affect the listed species. We considered whether any of these future activities may pose a greater threat to the essential features than to the listed species in order to identify any incremental costs of the designation. Based on our review (NMFS 2014b), we have determined that impacts resulting from EPA's management of municipal wastewater discharges to offshore waters and EPA's activities implementing the NPDES programs, as well as the USCG authorization or use of dispersants during an oil spill response in Unit 1, are more attributable to the critical habitat designation and are therefore incremental. In addition, we have identified two potential future activities that may have greater effects on the essential features than the species, and thus the impacts are incremental. These are oil and gas exploration and development in Unit 1 and the development of offshore renewable energy in Unit 2. Therefore, we conclude that there are incremental impacts attributable to this critical habitat designation. The associated estimated administrative annual costs for the projected number of formal consultations projected to be focused more on critical habitat are expected to cost approximately $82,296 per year. Economic effects from the action are not expected to be significant and are not anticipated to affect in a material way the economy, a sector of the economy, productivity, competition, jobs, local or tribal governments or communities.
Third party applicants or permittees would be expected to incur costs associated with participating in the administrative process of consultation along with the permitting federal agency. The average per consultation administrative costs for third parties is approximately $880. Because we have assumed all potential future consultations will be formal this may represent an overestimation of the costs. It is not possible to identify which third parties would qualify as small business entities. This action does not contain any new collection-of-information, reporting, recordkeeping, or other compliance requirements. Any reporting requirements associated with reporting on the progress and success of implementing project modifications are not likely to require special skills to satisfy.
In Unit 1, commercial fishing is the largest revenue generating activity occurring within the proposed critical habitat Unit 1; commercial fishing is not identified as an activity for which project modifications might be necessary. We have concluded, that with the exception of a possible future proposal to conduct a directed copepod fishery, the proposed action to designate critical habitat for the North Atlantic right whale will not have a direct impact on the profitability of small commercial fishing entities. That is because we have concluded that current fishing practices and techniques will not affect the essential foraging features in Unit 1. In 2014, based on a review of the number of active fishing vessels and dealers and trips landed in ME, NH, MA or RI in the Gulf of Maine Region, we have determined that there were 483 dealers and 8,094 fishing vessels that
In Unit 1, another potentially impacted small entity identified is small municipalities. A review of the consultation history indicates that we have consulted with the U.S. EPA on small governmental jurisdictions' (population less than or equal to 50,000) municipal wastewater discharges adjacent to the area under consideration for designation as critical habitat. Based on our review of past consultation history we are projecting a total of 2l consultations over the next 10 years involving primarily small municipalities and NPDES/Water Quality activities. Any small municipality that proposes to discharge pollutants to waters of the United States must obtain a discharge permit from EPA or their appropriate state environmental protection agency, depending on which agency administers the permit program, to ensure compliance with the Clean Water Act. The Section 7 consultation requirement applies to the EPA's, but not state agencies', authorization of discharges that may affect listed species and critical habitat. Of the states bordering proposed Unit 1, EPA administers the discharge permit program only in Massachusetts and New Hampshire; therefore, consultations with EPA would be required for municipal discharges only from those two states. Thus, the number of small municipalities that might be impacted would be less than the 20 predicted to be involved in consultations from all states bordering Unit 1, over the next 10 years. Generally, discharge permits need to be renewed every 5 years unless they are administratively extended, so there is the potential for consultation approximately every 5 years or so. In the past, we have consulted with EPA on discharges from publicly owned treatment works operated by small municipalities. Based on the past consultation history, we believe that any future economic impact to small municipalities due to consultation to analyze impacts to right whale critical habitat from wastewater discharge would be small.
Other small business entities include the approximately 55–70 whale-watching companies that operate within the area on which are found the essential foraging features under consideration for designation as critical habitat. While these small businesses may benefit indirectly from the preservation of the current ecosystem, approach regulations prohibit the targeting of right whales by these whale watching operations. Whale watching companies would not be negatively affected by this action as their activities were not identified as having the potential to affect the features. There is the potential for some unquantifiable positive benefit to accrue to these small businesses as a result of the preservation and maintenance of the ecosystem benefits associated with the essential foraging features.
In Unit 2, the only category of potentially impacted small entities is wind energy firms. Structures associated with these activities could fragment large, continuous areas of the essential features such that Unit 2 is rendered unsuitable for calving right whales. Potential project modifications to minimize impacts to essential features would likely focus on project design and density of structures. The SBA revised the size standards for 13 industries in the North American Industry Classification system (NAICS) Sector 22, Utilities. Relevant to this proposed action, the revised SBA small business now categorizes the small business entity for wind electric power generation as any firm with 250 employees or less. We are unable to quantify the incremental impacts at this time due to the lack of past consultation history and any specific or planned federal proposals for these projects. Thus, we would only be speculating in estimating the number of potential projects in this category that may require consultation due to critical habitat impacts over the next 10 years, and further speculating in predicting the number of small entities that might be involved.
No federal laws or regulations duplicate or conflict with the proposed rule. Existing Federal laws and regulations overlap with the proposed rule only to the extent that they provide protection to marine natural resources or whales generally. However, no existing laws or regulations specifically prohibit destruction or adverse modification of critical habitat for, and focus on the recovery of, North Atlantic right whales.
We encourage all small businesses, small governmental jurisdictions, and other small entities that may be affected by this proposed rule to comment on the potential economic impacts of the proposed designation, such as anticipated costs of consultation and potential project modifications, to improve the draft analysis.
The alternatives to the proposed designation considered consisted of a no-action alternative, our preferred alternative, and an alternative with larger areas designated in both Unit 1 and Unit 2 areas. The no-action, or no designation, alternative would result in no additional ESA section 7 consultations relative to the status quo of the species' listing and existing critical habitat. However, the physical and biological features forming the basis for our proposed critical habitat designation are essential to North Atlantic right whale conservation, and conservation for this species will not succeed without the availability of these features. Thus, the lack of protection of the critical habitat features from adverse modification could result in continued declines in abundance of the right whale, and loss of associated economic values right whales provide to society.
Under the preferred alternative two specific areas that provide foraging (Unit 1) and calving (Unit 2) functions for the North Atlantic right whale are proposed as critical habitat. These areas contain the physical and biological features essential to the conservation of the North Atlantic right whale. The preferred alternative was selected because it reflects the best available scientific information on right whale habitat, best implements the critical habitat provisions of the ESA by defining the specific features that are essential to the conservation of the species, and offers greater conservation benefits relative to the no action alternative.
Under the Unit 1 alternative, we considered an area that would encompass additional right whale sightings within the Gulf of Maine-Georges Bank region (particularly inshore waters along the coasts of Maine, New Hampshire and Massachusetts), as well as additional right whale sightings to the south and east of the southern boundary of proposed Unit 1 resulting in a much larger geographic area. However, these sightings did not constitute a pattern of repeated annual observations. In addition, North Atlantic right whales are seldom reported in small coastal bays and inshore waters and feeding aggregations are not in these areas, indicating that the physical and biological features present in these areas do not provide the foraging functions essential to the conservation of the
In addition we considered including areas to the south and east of the southern boundary of the proposed Unit 1 to encompass additional right whale sightings. These right whale sightings were not included within the proposed areas because a pattern of repeated annual observations is not evident in these areas. Typically, whales are sighted in these areas in one year, but are not seen again for a number of years. Most likely, these are sightings of migrating whales (Pace and Merrick 2008).
In Unit 2, we considered extending the boundaries to just south of Cape Canaveral, Florida, similar to existing SE calving critical habitat. Moving the proposed boundary southward would have captured southern habitat predicted by Good's (2008) calving habitat model for one month. However, Garrison's (2007) habitat model didn't predict suitable calving habitat that far south when based on the 75th percentile of predicted sightings per unit effort (SPUE) (91% of historical sightings). Since Garrison's 75th percentile captures 91% of historical sightings, we were comfortable with not examining additional model results by Garrison (
We have determined that this action will have no reasonably foreseeable effects on the enforceable policies of approved Coastal Zone Management Program of Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia and Florida. Upon publication of this proposed rule, these determinations will be submitted for review by the responsible state agencies under section 307 of the Coastal Zone Management Act.
This proposed rule does not contain a new or revised collection of information. This rule would not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations.
Pursuant to the Executive Order on Federalism, E.O. 13132, we determined that this proposed rule does not have significant Federalism effects and that a Federalism assessment is not required. However, in keeping with Department of Commerce policies and consistent with ESA regulations at 50 CFR 424.16(c)(1)(ii), we request information from, and will coordinate development of this proposed critical habitat designation with, appropriate state resource agencies in Maine, New Hampshire, Massachusetts, Rhode Island, Connecticut, New York, New Jersey, Delaware, Maryland, Virginia, North Carolina, South Carolina, Georgia, and Florida. The proposed designations may have some benefit to state and local resource agencies in that the proposed rule more clearly defines the physical and biological features essential to the conservation of the species and the areas on which those features are found. It may also assist local governments in long-range planning (rather than waiting for case by-case ESA section 7 consultations to occur).
On May 18, 2001, the President issued an Executive Order on regulations that significantly affect energy supply, distribution, and use. E.O. 13211 requires agencies to prepare Statements of Energy Effects when undertaking an action expected to lead to the promulgation of a final rule or regulation that is a significant regulatory action under E.O. 12866 and is likely to have a significant adverse effect on the supply, distribution, or use of energy. OMB Guidance on Implementing E.O. 13211 (July 13, 2001) states that significant adverse effects could include any of the following outcomes compared to a world without the regulatory action under consideration: (1) Reductions in crude oil supply in excess of 10,000 barrels per day; (2) reductions in fuel production in excess of 4,000 barrels per day; (3) reductions in coal production in excess of 5 million tons per year; (4) reductions in natural gas production in excess of 25 million mcf per year; (5) reductions in electricity production in excess of 1 billion kilowatt-hours per year or in excess of 500 megawatts of installed capacity; (6) increases in energy use required by the regulatory action that exceed any of the thresholds above; (7) increases in the cost of energy production in excess of one percent; (8) increases in the cost of energy distribution in excess of one percent; or (9) other similarly adverse outcomes. A regulatory action could also have significant adverse effects if it: (1) Adversely affects in a material way the productivity, competition, or prices in the energy sector; (2) adversely affects in a material way productivity, competition or prices within a region; (3) creates a serious inconsistency or otherwise interfere with an action taken or planned by another agency regarding energy; or (4) raises novel legal or policy issues adversely affecting the supply, distribution or use of energy arising out of legal mandates, the President's priorities, or the principles set forth in E.O. 12866 and 13211. This rule, if finalized, will not have a significant adverse effect on the supply, distribution, or use of energy. Therefore, we have not prepared a Statement of Energy Effects. The rationale for this determination follows.
We have considered the potential impacts of this action on the supply, distribution, or use of energy. The proposed critical habitat designation will not affect the distribution or use of energy and would not affect supply. We have concluded that oil and gas exploration and development that might occur in the future, offshore liquid natural gas (LNG) facilities, and alternative energy projects may affect both the species and the essential features of critical habitat. As discussed in the Draft Section 4(b)(2) Report, we anticipate that there may be small additional incremental administrative
With regard to LNG facilities in Unit 1, we do not anticipate incremental impacts from this rule on LNG activities based on our analysis of the potential impacts of this activity. Absent this proposed critical habitat rule, federal agencies authorizing, funding, or carrying out these energy-related activities would be required to consult with NMFS regarding impacts to right whales themselves, and other listed species such as sea turtles, under the jeopardy standard. However, if this critical habitat rule were finalized, we would expect the additional, critical habitat-related administrative costs to be miniscule, and we would expect any critical habitat-related project modification costs to insignificant.
The proposed action might result in project modifications that result in changes to how energy extraction is conducted, but these modifications would not result in a reduction of energy supply or production or increases in energy use. The proposed action would not result in an increase in the cost of energy production in excess of one percent.
In Unit 2, depending on the size, scale, and configuration of a potential wind farm, the installation and operation of an array of wind turbines may fragment large, continuous areas of the essential features such that Unit 2 is rendered unsuitable for calving right whales. Therefore, potential project modifications may be recommended during a section 7 consultation including project relocation or project redesign. Recommending relocation of a proposed wind farm may result in increased costs per kilowatt (kW). These increased costs may stem from increased distance from shore, increased water depths, or different environmental conditions at the alternative site, each of which may drive up construction, installation, or operation and maintenance costs. Because potential project modifications recommended during a section 7 consultation are dependent on the specific project and the circumstances of the new project's routes of effect on the species and the essential features, an estimate of the average cost or range of costs resulting from these recommendations cannot be reasonably made at this time.
As discussed, above and in the Draft ESA Section 4(b)(2) Report, any potential project modification that would be recommended to avoid impacts to the species would also address potential impacts to the essential features. In addition, in some cases, potential project modifications are common environmental mitigation measures that are already being performed under existing laws and regulations that seek to prevent or minimize adverse impacts to marine resources in general. Therefore, it appears unlikely that the energy industry will experience “a significant adverse effect” as a result of the critical habitat designation for North Atlantic right whale.
In accordance with the Unfunded Mandates Reform Act, NMFS makes the following findings:
(A) This final rule will not produce a Federal mandate. In general, a Federal mandate is a provision in legislation, statute, or regulation that would impose an enforceable duty upon State, local, Tribal governments, or the private sector and includes both “Federal intergovernmental mandates” and “Federal private sector mandates.” These terms are defined in 2 U.S.C. 658(5)–(7). “Federal intergovernmental mandate” includes a regulation that “would impose an enforceable duty upon State, local, or Tribal governments” with two exceptions. It excludes “a condition of Federal assistance.” It also excludes “a duty arising from participation in a voluntary Federal program,” unless the regulation “relates to a then-existing Federal program under which $500,000,000 or more is provided annually to State, local, and Tribal governments under entitlement authority,” if the provision would “increase the stringency of conditions of assistance” or “place caps upon, or otherwise decrease, the Federal government's responsibility to provide funding” and the State, local, or Tribal governments “lack authority” to adjust accordingly. “Federal private sector mandate” includes a regulation that “would impose an enforceable duty upon the private sector, except (i) a condition of Federal assistance; or (ii) a duty arising from participation in a voluntary Federal program.” The designation of critical habitat does not impose an enforceable duty on non-Federal government entities or private parties. The only regulatory effect of a critical habitat designation is that Federal agencies must ensure that their actions do not destroy or adversely modify critical habitat under ESA section 7. Non-Federal entities who receive funding, assistance, or permits from Federal agencies, or otherwise require approval or authorization from a Federal agency for an action may be indirectly affected by the designation of critical habitat. Furthermore, to the extent that non-Federal entities are indirectly impacted because they receive Federal assistance or participate in a voluntary Federal aid program, the Unfunded Mandates Reform Act would not apply, nor would critical habitat shift the costs of the large entitlement programs listed previously to State governments.
(B) We do not anticipate that this final rule will significantly or uniquely affect small governments. As such, a Small Government Agency Plan is not required.
Under E.O. 12630, Federal agencies must consider the effects of their actions on constitutionally protected private property rights and avoid unnecessary takings of property. A taking of property includes actions that result in physical invasion or occupancy of private property, and regulations imposed on private property that substantially affect its value or use. In accordance with E.O. 12630, this proposed rule would not have significant takings implications. A takings implication assessment is not required. The designation of critical habitat in the marine environment does not affect private property, and it affects only Federal agency actions.
A complete list of all references cited in this rulemaking can be found on our Web site at
Endangered and threatened species.
For the reasons set out in the preamble, we propose to amend 50 CFR part 226 as follows:
16 U.S.C. 1533.
Critical habitat is designated for North Atlantic right whales as described in this section. The textual descriptions in paragraph (b) of this section are the definitive source for determining the critical habitat boundaries. The maps of the critical habitat units provided in paragraph (c) of this section are for illustrative purposes only.
(a) Physical and biological features essential to the conservation of endangered North Atlantic right whales.
(1)
(2)
(i) Sea surface conditions associated with Force 4 or less on the Beaufort Scale,
(ii) Sea surface temperatures of 7 °C to 17 °C, and
(iii) Water depths of 6 to 28 meters, where these features simultaneously co-occur over contiguous areas of at least 231 nmi
(i) The southern tip of Nauset Beach (Cape Cod) (41°38.39′ N/69°57.32′ W)
(ii) From this point, southwesterly to 41°37.19′ N/69°59.11′ W
(iii) From this point, southward along the eastern shore of South Monomoy Island to 41°32.76′ N/69°59.73′ W
(iv) From this point, southeasterly to 40°50′ N/69°12′ W
(v) From this point, east to 40°50′ N 68°50′ W
(vi) From this point, northeasterly to 42°00′ N 67°55′ W
(vii) From this point, east to 42°00′ N 67°30′ W
(viii) From this point, northeast to the intersection of the U.S.-Canada maritime boundary and 42°10′ N
(ix) From this point, following the U.S.-Canada maritime boundary north to the intersection of 44°49.727′ N/66°57.952′ W; From this point, moving southwest along the coast of Maine, the specific area is located seaward of the line connecting the following points:
(x) From this point (43°2.93′ N/70°41.47′ W) on the coast of New Hampshire south of Portsmouth, the boundary of the specific area follows the coastline southward along the coasts of New Hampshire and Massachusetts along Cape Cod to Provincetown southward along the eastern edge of Cape Cod to the southern tip of Nauset Beach (Cape Cod) (41°38.39′ N/69°57.32′ W) with the exception of the area landward of the lines drawn by connecting the following points:
(
(2)
(c) Overview maps of the designated critical habitat for the North Atlantic right whale follow.
(b) ISAOs may be organized on the basis of sector, sub-sector, region, or any other affinity, including in response to particular emerging threats or vulnerabilities. ISAO membership may be drawn from the public or private sectors, or consist of a combination of public and private sector organizations. ISAOs may be formed as for-profit or nonprofit entities.
(c) The National Cybersecurity and Communications Integration Center (NCCIC), established under section 226(b) of the Homeland Security Act of 2002 (the “Act”), shall engage in continuous, collaborative, and inclusive coordination with ISAOs on the sharing of information related to cybersecurity risks and incidents, addressing such risks and incidents, and strengthening information security systems consistent with sections 212 and 226 of the Act.
(d) In promoting the formation of ISAOs, the Secretary shall consult with other Federal entities responsible for conducting cybersecurity activities,
(b) To be selected, the SO must demonstrate the ability to engage and work across the broad community of organizations engaged in sharing information related to cybersecurity risks and incidents, including ISAOs, and associations and private companies engaged in information sharing in support of their customers.
(c) The agreement referenced in section 3(a) shall require that the SO engage in an open public review and comment process for the development of the standards referenced above, soliciting the viewpoints of existing entities engaged in sharing information related to cybersecurity risks and incidents, owners and operators of critical infrastructure, relevant agencies, and other public and private sector stakeholders.
(d) The Secretary shall support the development of these standards and, in carrying out the requirements set forth in this section, shall consult with the Office of Management and Budget, the National Institute of Standards and Technology in the Department of Commerce, Department of Justice, the Information Security Oversight Office in the National Archives and Records Administration, the Office of the Director of National Intelligence, Sector-Specific Agencies, and other interested Federal entities. All standards shall be consistent with voluntary international standards when such international standards will advance the objectives of this order, and shall meet the requirements of the National Technology Transfer and Advancement Act of 1995 (Public Law 104–113), and OMB Circular A–119, as revised.
(b) Other Federal entities responsible for conducting cybersecurity and related activities to address threats to the public health and safety, national security, and economic security, consistent with the objectives of this order, may participate in activities under these agreements.
(c) The Secretary will determine the eligibility of ISAOs and their members for any necessary facility or personnel security clearances associated with voluntary agreements in accordance with Executive Order 13549 of August 18, 2010 (Classified National Security Information Programs for State, Local, Tribal, and Private Sector Entities), and Executive Order 12829 of January 6, 1993 (National Industrial Security Program), as amended, including as amended by this order.
(b) Senior privacy and civil liberties officials for agencies engaged in activities under this order shall conduct assessments of their agency's activities and provide those assessments to the Department of Homeland Security (DHS) Chief Privacy Officer and the DHS Office for Civil Rights and Civil Liberties for consideration and inclusion in the Privacy and Civil Liberties Assessment report required under Executive Order 13636.
(a) the second paragraph is amended by inserting “the Intelligence Reform and Terrorism Prevention Act of 2004,” after “the National Security Act of 1947, as amended,”;
(b) Sec. 101(b) is amended to read as follows: “The National Industrial Security Program shall provide for the protection of information classified pursuant to Executive Order 13526 of December 29, 2009, or any predecessor or successor order, and the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011
(c) Sec. 102(b) is amended by replacing the first paragraph with: “In consultation with the National Security Advisor, the Director of the Information Security Oversight Office, in accordance with Executive Order 13526 of December 29, 2009, shall be responsible for implementing and monitoring the National Industrial Security Program and shall:”;
(d) Sec. 102(c) is amended to read as follows: “Nothing in this order shall be construed to supersede the authority of the Secretary of Energy or the Nuclear Regulatory Commission under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011
(e) Sec. 201(a) is amended to read as follows: “The Secretary of Defense, in consultation with all affected agencies and with the concurrence of the Secretary of Energy, the Nuclear Regulatory Commission, the Director of National Intelligence, and the Secretary of Homeland Security, shall issue and maintain a National Industrial Security Program Operating Manual (Manual). The Secretary of Energy and the Nuclear Regulatory Commission shall prescribe and issue that portion of the Manual that pertains to information classified under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011
(f) Sec. 201(f) is deleted in its entirety;
(g) Sec. 201(e) is redesignated Sec. 201(f) and revised by substituting “Executive Order 13526 of December 29, 2009, or any successor order,” for “Executive Order No. 12356 of April 2, 1982.”;
(h) Sec. 201(d) is redesignated Sec. 201(e) and revised by substituting “the Director of National Intelligence, and the Secretary of Homeland Security” for “and the Director of Central Intelligence.”;
(i) a new Sec. 201(d) is inserted after Sec. 201(c) to read as follows: “The Manual shall also prescribe arrangements necessary to permit and enable secure sharing of classified information under a designated critical infrastructure protection program to such authorized individuals and organizations as determined by the Secretary of Homeland Security.”;
(j) Sec. 202(b) is amended to read as follows: “The Director of National Intelligence retains authority over access to intelligence sources and methods, including Sensitive Compartmented Information. The Director of National Intelligence may inspect and monitor contractor, licensee, and grantee programs and facilities that involve access to such information or may enter into written agreements with the Secretary of Defense, as Executive Agent, or with the Director of the Central Intelligence Agency to inspect and monitor these programs or facilities, in whole or in part, on the Director's behalf.”;
(k) Sec. 202(d) is redesignated as Sec. 202(e); and
(l) in Sec. 202 a new subsection (d) is inserted after subsection (c) to read as follows: “The Secretary of Homeland Security may determine the eligibility for access to Classified National Security Information of contractors, licensees, and grantees and their respective employees under a designated critical infrastructure protection program, including parties to agreements with such program; the Secretary of Homeland Security may inspect and monitor contractor, licensee, and grantee programs and facilities or may enter into written agreements with the Secretary of Defense, as Executive Agent, or with the Director of the Central Intelligence Agency, to inspect and monitor these programs or facilities in whole or in part, on behalf of the Secretary of Homeland Security.”
(b) “Critical infrastructure protection program” has the meaning given the term in section 212(4) of the Critical Infrastructure Information Act of 2002.
(c) “Cybersecurity risk” has the meaning given the term in section 226(a)(1) of the Homeland Security Act of 2002 (as amended by the National Cybersecurity Protection Act of 2014).
(d) “Fair Information Practice Principles” means the eight principles set forth in Appendix A of the National Strategy for Trusted Identities in Cyberspace.
(e) “Incident” has the meaning given the term in section 226(a)(2) of the Homeland Security Act of 2002 (as amended by the National Cybersecurity Protection Act of 2014).
(f) “Information Sharing and Analysis Organization” has the meaning given the term in section 212(5) of the Critical Infrastrucure Information Act of 2002.
(g) “Sector-Specific Agency” has the meaning given the term in PPD–21, or any successor.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations. Nothing in this order shall be construed to alter or limit any authority or responsibility of an agency under existing law including those activities conducted with the private sector relating to criminal and national security threats. Nothing in this order shall be construed to provide an agency with authority for regulating
(c) All actions taken pursuant to this order shall be consistent with requirements and authorities to protect intelligence and law enforcement sources and methods.
(d) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(a)
(b)
(c)
(d)
(e)
(a) There is hereby established a multi-stakeholder engagement process to develop and communicate best practices for privacy, accountability, and transparency issues regarding commercial and private UAS use in the NAS. The process will include stakeholders from the private sector.
(b) Within 90 days of the date of this memorandum, the Department of Commerce, through the National Telecommunications and Information Administration, and in consultation with other interested agencies, will initiate this multi-stakeholder engagement process to develop a framework regarding privacy, accountability, and transparency for commercial and private UAS use. For this process, commercial and private use includes the use of UAS for commercial purposes as civil aircraft, even if the use would qualify a UAS as a public aircraft under 49 U.S.C. 40102(a)(41) and 40125. The process shall not focus on law enforcement or other noncommercial governmental use.
(a) “Agencies” means executive departments and agencies of the Federal Government that conduct UAS operations in the NAS.
(b) “Federal Government use” means operations in which agencies operate UAS in the NAS. Federal Government use includes agency UAS operations on behalf of another agency or on behalf of a State, local, tribal, or territorial government, or when a nongovernmental entity operates UAS on behalf of an agency.
(c) “National Airspace System” means the common network of U.S. airspace; air navigation facilities, equipment, and services; airports or landing areas; aeronautical charts, information, and services; related rules, regulations, and procedures; technical information; and manpower and material. Included in this definition are system components shared jointly by the Departments of Defense, Transportation, and Homeland Security.
(d) “Unmanned Aircraft System” means an unmanned aircraft (an aircraft that is operated without direct human intervention from within or on the aircraft) and associated elements (including communication links and components that control the unmanned aircraft) that are required for the pilot
(e) “Personally identifiable information” refers to information that can be used to distinguish or trace an individual's identity, either alone or when combined with other personal or identifying information that is linked or linkable to a specific individual, as set forth in Office of Management and Budget Memorandum M–07–16 (May 22, 2007) and Office of Management and Budget Memorandum M–10–23 (June 25, 2010).
(b) This memorandum shall be implemented consistent with applicable law, and subject to the availability of appropriations.
(c) Nothing in this memorandum shall be construed to impair or otherwise affect:
(d) Independent agencies are strongly encouraged to comply with this memorandum.
(e) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(f) The Secretary of Commerce is hereby authorized and directed to publish this memorandum in the