Animal and Plant Health Inspection Service
Farm Service Agency
Food and Nutrition Service
Forest Service
Rural Utilities Service
International Trade Administration
National Oceanic and Atmospheric Administration
Engineers Corps
Energy Efficiency and Renewable Energy Office
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Children and Families Administration
Food and Drug Administration
Health Resources and Services Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
U.S. Citizenship and Immigration Services
Fish and Wildlife Service
Indian Affairs Bureau
Land Management Bureau
National Park Service
Reclamation Bureau
Alcohol, Tobacco, Firearms, and Explosives Bureau
Antitrust Division
Parole Commission
Employee Benefits Security Administration
Copyright Royalty Board
National Endowment for the Arts
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
Foreign Assets Control Office
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
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Federal Emergency Management Agency, DHS.
Final rule.
On December 19, 2014, all Federal award-making agencies, including the Department of Homeland Security (DHS) and its component, the Federal Emergency Management Agency (FEMA), published a joint interim final rule implementing the Office of Management and Budget (OMB)'s Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards. DHS and FEMA now adopt, with one change, the interim final rule as final. The change restores language in the FEMA State and Tribal mitigation planning regulations that was inadvertently removed by the interim final rule.
Andrea Brandon, Director, Financial Assistance Policy and Oversight (FAPO), Office of the Chief Financial Officer (OCIO), DHS, at (202) 447–0675 or
On November 23, 2009, the President issued Executive Order 13520 (“Reducing Improper Payments and Eliminating Waste in Federal Programs”). On February 28, 2011, the President issued a Presidential Memorandum (“Administrative Flexibility, Lower Costs, and Better Results for State, Local, and Tribal Governments”). These documents directed OMB to work with Executive Branch agencies to potentially establish reforms on Federal grant policies.
In response, on October 27, 2011, OMB established the Council on Financial Assistance Reform, an interagency group of Executive Branch officials tasked with creating an accountable structure to coordinate financial assistance, streamline Federal grant-making requirements, ease administrative burdens, and strengthen Federal fund oversight to reduce risks of waste, fraud, and abuse.
On February 28, 2012, OMB published an Advanced Notice of Proposed Guidance.
• The consolidation of eight previously-issued OMB Circulars on grants and awards;
• A uniform set of administrative requirements for grant recipients;
• A focus on grantee performance over compliance for accountability;
• An emphasis on efficient uses of information technology and shared services;
• A uniform set of cost principles that treats costs transparently and consistently;
• A limitation on allowable costs in order to make best uses of Federal resources;
• The standardization of business processes using consistent data element definitions;
• An emphasis on oversight by reviewing risks prior to awarding grants; and
• A uniform set of audit requirements that prioritizes identifying the risks of fraud, waste, and abuse.
The Uniform Guidance required Federal agencies to implement the policies and procedures applicable to Federal awards by promulgating a regulation to be effective by December 26, 2014.
On December 19, 2014, all Federal award-making agencies promulgated a joint interim final rule implementing the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards.
During the joint interim final rule's comment period, OMB received 61 comments from individuals and organizations. No comments OMB received referenced DHS or FEMA. Thus, DHS and FEMA are adopting the interim final rule as final, with one change.
FEMA's mitigation planning regulations are located at 44 CFR part 201, and set forth instructions on the policies and procedures for State, Tribal, and local hazard mitigation planning. Hazard mitigation is any sustained action taken to reduce or eliminate long-term risk to people and property from natural hazards and their effects. The purpose of hazard mitigation planning is to identify policies and actions that can be implemented over the long-term to reduce risk and future losses. State, Indian Tribal, and local governments are required to develop a hazard mitigation plan as one of the conditions for establishing eligibility for certain types of Federal non-emergency disaster assistance and FEMA mitigation grants.
The December 19, 2014 joint interim final rule contained an inadvertent error
In the December 19, 2014 joint interim final rule, FEMA revised the first sentences of 44 CFR 201.4(c)(7) and 44 CFR 201.7(c)(6) with a general citation to 2 CFR parts 200 and 3002. However, FEMA unintentionally removed the second sentence of these sections and thus inadvertently removed a procedure by which States and Indian Tribal governments amend their mitigation plans when necessary to reflect changes in State, Indian Tribal, or Federal laws or regulations. In this final rule, FEMA is reinserting this provision.
While FEMA previously referenced 44 CFR 13.11(d) in both 44 CFR 201.4(c)(7) and in 44 CFR 201.7(c)(6), FEMA, as noted above, removed 44 CFR part 13 and replaced all references to Part 13 with corresponding references to 2 CFR parts 200 and 3002, as applicable. There are no corresponding pinpoint cites in 2 CFR part 200 or Part 3002 that replace the requirements found at 44 CFR 13.11(d). Thus, FEMA cannot carry this reference over to the revised regulations. FEMA regulations have included the procedure for States and Indian Tribal governments since 2002 and 2007, respectively, to amend their plans to reflect changes in State, Indian Tribal, or Federal laws, statutes and regulations, as applicable. As FEMA is simply reinserting an inadvertently removed and longstanding provision, this change does not create new program requirements. FEMA also describes these provisions in various guidance materials and is revising the references as applicable.
Pursuant to Executive Order 12866, as amended, OMB's Office of Information and Regulatory Affairs (OIRA) has designated this final rule to be not significant.
The Administrative Procedure Act (APA) provides that an agency may dispense with notice and comment rulemaking procedures when it promulgates an interpretive rule, a general statement of policy, or a rule of agency organization, procedure, or practice.
In addition, the APA provides that an agency may dispense with notice and comment rulemaking procedures when an agency, for good cause, finds those procedures are impracticable, unnecessary, or contrary to the public interest.
The Regulatory Flexibility Act (RFA) requires an agency that is issuing a final rule to provide a final regulatory flexibility analysis or to certify that the rule will not have a significant economic impact on a substantial number of small entities. This final rule imposes no cost as the common interim rule implemented OMB final guidance issued on December 26, 2013, and did not have a significant economic impact beyond the impact of the December 2013 guidance.
The Unfunded Mandates Reform Act of 1995, Public Law 104–4, 109 Stat. 48 (Mar. 22, 1995) (2 U.S.C. 1501
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Ch. 3506; 5 CFR Appendix A.1) (PRA), DHS and FEMA reviewed this final rule and have determined that there are no new collections of information contained therein.
Executive Order 13175, “Consultation and Coordination With Indian Tribal Governments,” (65 FR 67249, Nov. 9, 2000), applies to agency regulations that have Tribal implications, that is, regulations that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. Under this Executive Order, to the extent practicable and permitted by law, no agency shall promulgate any regulation that has Tribal implications, that imposes substantial direct compliance costs on Indian Tribal governments, and that is not required by statute, unless funds necessary to pay the direct costs incurred by the Indian Tribal government or the Tribe in complying with the regulation are provided by the Federal Government, or the agency consults with Tribal officials. DHS and FEMA have determined that this final rule does not have any Tribal implications.
DHS and FEMA have determined that this final rule does not have any federalism implications, as required by Executive Order 13132.
Accounting, Administrative practice and procedure, Adult education, Aged, Agriculture, American Samoa, Bilingual education, Blind, Business and industry, Civil rights, Colleges and universities, Communications, Community development, Community facilities, Copyright, Credit, Cultural exchange programs, Educational facilities, Educational research, Education, Education of disadvantaged, Education of individuals with disabilities, Educational study programs, Electric power, Electric power rates, Electric utilities, Elementary and secondary education, Energy conservation, Equal educational opportunity, Federally affected areas, Government contracts, Grant programs, Grant programs-agriculture, Grant programs-business and industry, Grant programs-communications, Grant
Accounting, Grant programs, Indians, Intergovernmental relations, Reporting and recordkeeping requirements.
Flood insurance, Grant programs.
Flood insurance, Grant programs.
Fire prevention, Grant programs, Reporting and recordkeeping requirements.
Administrative practice and procedure, Disaster assistance, Grant programs, Reporting and recordkeeping requirements.
Administrative practice and procedure, Coastal zone, Community facilities, Disaster assistance, Fire prevention, Grant programs-housing and community development, Housing, Insurance, Intergovernmental relations, Loan programs-housing and community development, Natural resources, Penalties, Reporting and recordkeeping requirements.
Administrative practice and procedure, Disaster assistance, Grant programs, Reporting and recordkeeping requirements.
Disaster assistance, grant programs.
American Samoa, Civil defense, Grant programs-National defense, Guam, Northern Mariana Islands, Reporting and recordkeeping requirements, Virgin Islands.
Civil defense, Disaster assistance, Education, Grant programs-education, Intergovernmental relations, Reporting and recordkeeping requirements.
Disaster assistance, Grant programs-housing and community development, Reporting and recordkeeping requirements.
Accordingly, the interim final rule amending 2 CFR part 3002 and 44 CFR parts 13, 78, 79, 152, 201, 204, 206, 207, 208, 304, 360, and 361, which was published in the
Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 through 5207; Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; Homeland Security Act of 2002, 6 U.S.C. 101; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376; E.O. 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; E.O. 13286, 68 FR 10619, 3 CFR, 2003 Comp., p. 166.
(c) * * *
(7) * * * The State will amend its plan whenever necessary to reflect changes in State or Federal statutes and regulations.
(c) * * *
(6) * * * The Indian Tribal government will amend its plan whenever necessary to reflect changes in Tribal or Federal laws and statutes.
Animal and Plant Health Inspection Service, USDA.
Interim rule and request for comments.
We are amending the golden nematode regulations by removing areas in Orleans, Nassau, and Suffolk Counties in the State of New York from the list of generally infested areas. Surveys and other data have shown that certain areas in these counties are free of golden nematode, and we have determined that regulation of these areas is no longer necessary. As a result of this action, areas in Orleans, Nassau, and Suffolk Counties in the State of New York that have been listed as generally infested will be removed from the list of areas regulated for golden nematode. This action is necessary to relieve restrictions on certain areas that are no longer necessary.
This interim rule is effective October 2, 2015. We will consider all comments that we receive on or before December 1, 2015.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments we receive on this docket
Mr. Jonathan M. Jones, National Policy Manager, Pest Management, Plant Protection and Quarantine, APHIS, 4700 River Road Unit 160, Riverdale, MD 20737; (301) 851–2128.
The golden nematode (
In 7 CFR part 301, the golden nematode quarantine regulations (§§ 301.85 through 301.85–10, referred to below as the regulations) set out procedures for determining the areas regulated for golden nematode and impose restrictions on the interstate movement of regulated articles from regulated areas.
Paragraph (a) of § 301.85–2 states that the Deputy Administrator, Plant Protection and Quarantine, Animal and Plant Health Inspection Service (APHIS), shall list as regulated areas each quarantined State or each portion thereof in which golden nematode has been found or in which there is reason to believe that golden nematode is present, or which it is deemed necessary to regulate because of their proximity to infestation or their inseparability for quarantine enforcement purposes from infested localities.
Paragraph (b) of § 301.85–2 states that the Deputy Administrator or an authorized inspector may temporarily designate any other premises in a quarantined State as a regulated area and a suppressive or generally infested area, in accordance with the criteria specified in paragraph (a).
Paragraph (c) of § 301.85–2 states that, in accordance with the criteria listed in § 301.852(a), the Deputy Administrator shall terminate the designation of any area listed as a regulated area and suppressive or generally infested area when he or she determines that such designation is no longer required.
Surveys and other data have revealed that certain areas in Orleans, Nassau, and Suffolk Counties of New York are free of golden nematode. Accordingly, on September 17, 2014, APHIS issued a Federal Order
Approximately 509 acres will remain under regulation in Nassau County, 68 acres in Orleans County, and 221,504 acres in Suffolk County. Further analysis continues in each of these counties that may lead to additional acres being eligible to be removed from regulation in the future.
In an interim rule dated January 9, 2013 (78 FR, 1713–1715, Docket No. APHIS–2012–0079), we amended the golden nematode regulations by removing areas in Livingston and Steuben Counties in New York from the list of generally infested areas. In that rule, the coordinates we used to delineate the revised areas under quarantine were formatted in such a way that they did not accurately represent the areas we wished to lift from restrictions. Therefore, we are publishing the corrected coordinates of the areas remaining under quarantine in Livingston and Steuben Counties in this rule.
Immediate action is warranted to relieve restrictions that are no longer necessary on the specified areas in Orleans, Nassau, and Suffolk Counties in New York that have been regulated for golden nematode. Under these circumstances, the Administrator has determined that prior notice and opportunity for public comment are contrary to the public interest and that there is good cause under 5 U.S.C. 553 for making this action effective less than 30 days after publication in the
We will consider comments we receive during the comment period for this interim rule (see
This interim rule is subject to Executive Order 12866. However, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.
In accordance with the Regulatory Flexibility Act, we have analyzed the potential economic effects of this action on small entities. The analysis is summarized below. The full analysis may be viewed on the Regulations.gov Web site (see
APHIS has removed 600,524 acres from the golden nematode regulations in specific areas in three New York counties: Orleans, Nassau, and Suffolk. Of the areas remaining under regulation, 221,504 acres are in Suffolk County, 509 acres are in Nassau County, and 68 acres are in Orleans County.
Golden nematode is a major pest of potato and other many other solanaceous plants. Sale of many soil-related products is negatively impacted in areas under quarantine for golden nematode. We impose sanitation requirements on movement of agricultural equipment and non-agricultural entities that use earth-moving equipment. The pest is spread by the transport of cysts in soil, in particular through the inadvertent movement of infested soil attached to agricultural products, farming equipment, and other regulated articles.
In 2014, the State of New York harvested 15,800 acres of potatoes valued at approximately $55 million, with Suffolk County being the number one county in potato production. While there are no detailed potato data published by county, 42 entities in Suffolk County have been affected by the deregulation and of these 18 entities are potato growers. One potato farm has been affected by the deregulation in Nassau County. Deregulation of quarantine areas in Orleans County is not known to have affected any entities.
The 43 affected entities will benefit from no longer needing to satisfy compliance requirements of the quarantine. They may also find improved export opportunities. While the potato farmers as well as the rest of the affected entities may qualify as small entities, they are few in number and their share of the nation's potato industry is small. Even though New
Under these circumstances, the Administrator of the Animal and Plant Health Inspection Service has determined that this action will not have a significant economic impact on a substantial number of small entities.
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)
This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.
This rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Agricultural commodities, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Transportation.
Accordingly, we are amending 7 CFR part 301 as follows:
7 U.S.C. 7701–7772 and 7781–7786; 7 CFR 2.22, 2.80, and 371.3.
Section 301.75–15 issued under Sec. 204, Title II, Pub. L. 106–113, 113 Stat. 1501A–293; sections 301.75–15 and 301.75–16 issued under Sec. 203, Title II, Pub. L. 106–224, 114 Stat. 400 (7 U.S.C. 1421 note).
(1)
(B) That portion of land in the area of South Lima South Muck in the town of Lima bounded as follows: Beginning at a point along the south side of South Lima Rd. marked by latitude/longitude coordinates 42.8552, −77.6774; then south to coordinates 42.8548, −77.6774; then east to coordinates 42.8548, −77.6767; then south to coordinates 42.8509, −77.6770; then south to coordinates 42.8447, −77.6772; then east to coordinates 42.8446, −77.6739; then north along a farm road to coordinates 42.8477, −77.6728; then east along a farm road to coordinates 42.8488, −77.6700; then north along a farm road to coordinates 42.8512, −77.6701; then west along a farm road to coordinates 42.8512, −77.6720; then north along a farm road to coordinates 42.8516, −77.6720; then west along a farm road to coordinates 42.8518, −77.6740; then north to coordinates 42.8541, −77.6740; then west to coordinates 42.8545, −77.6766; then north to coordinates 42.8552, −77.6765; then west to point of beginning at coordinates 42.8552, −77.6774;
(C) That portion of land in the area of Wiggle Muck in the town of Livonia bounded as follows: Beginning at a point along the west side of Plank Rd. (State highway 15A) marked by latitude/longitude coordinates 42.8489, −77.6136; then west to coordinates 42.8491, −77.6203; then south along a farm road to coordinates 42.8468, −77.6192; then south along a farm road to coordinates 42.8419, −77.6188; then east to coordinates 42.8422, −77.6161; then north along a farm road to coordinates 42.8487, −77.6168; then east to the west side of Plank Rd. marked by coordinates 42.8487, −77.6135; then north to point of beginning at coordinates 42.8489, −77.6136; and
(D) That portion of land in the town of Avon bounded as follows: Beginning at a point marked by latitude/longitude coordinates 42.9056, −77.6872; then east along a farm road to coordinates 42.9054, −77.6850; then east along a farm road to coordinates 42.9060, −77.6825; then north along a drainage ditch to coordinates 42.9069, −77.6823; then north along a drainage ditch to coordinates 42.9079, −77.6847; then north to coordinates 42.9103, −77.6844; then west along the south side of a farm road to coordinates 42.9103, −77.6857; then south along a farm road to point of beginning at coordinates 42.9056, −77.6872.
(B) That portion of land in the town of Oyster Bay and in the village of Old Brookville bounded as follows: Beginning at a point marked by latitude-longitude coordinates 40.8343, −73.5921; then heading south 399′ along Hegemans Lane to coordinates 40.8332, −73.5920; then heading 403′ northeast along a tree line to coordinates 40.8335, −73.5906; then heading 263′ north to coordinates 40.8342, −73.5906; then heading northwest 6′ along Linden Lane to coordinates 40.8342, −73.5906; continuing northwest 98′ along Linden Lane to coordinates 40.8343, −73.5909; continuing northwest 52′ along Linden Lane to coordinates 40.8344, −73.5911; then continuing 54′ northwest along Linden Lane to coordinates 40.8344, −73.5913; then heading southwest 43′ along Linden Lane to coordinates 40.8344, −73.5915; then continuing southwest 170′ to the starting point at coordinates 40.8343, −73.5921;
(C) That portion of land in the town of Oyster Bay and the village of Old Brookville bounded as follows: Beginning at a point marked by latitude-longitude coordinates 40.8365, −73.5874; then heading south 452′ to coordinates 40.8352, −73.5873; then proceeding northeast 583′ to coordinates 40.8356, −73.5853; then heading north-northwest 400′ to coordinates 40.8367, −73.5855; then heading 529′ southwest to the starting point at coordinates 40.8365, −73.5874;
(D) That portion of land in the town of Oyster Bay in the villages of Upper Brookville and Matinecock bounded as follows: Beginning at a point marked by latitude-longitude coordinates 40.8631, −73.5671; proceeding south 240′ along Chicken Valley Road to coordinates 40.8625, −73.5670; continuing south 293′ along Chicken Valley Road to coordinates 40.8617, −73.5670; continuing south 131′ along Chicken Valley Road to coordinates 40.8613, −73.5670; proceeding south-southwest 116′ along Chicken Valley Road to coordinates 40.8610, −73.5671; continuing south-southwest 113′ along Chicken Valley Road to coordinates 40.8670, −73.5672; proceeding southwest 116′ along Chicken Valley Road to coordinates 40.8604, −3.5674; continuing southwest 337′ along Chicken Valley Road to coordinates 40.8596, −73.5679; continuing southwest 82′ along Chicken Valley Road to coordinates 40.8594, −73.5680; then heading east-northeast 819′ through a wooded area to coordinates 40.8596, −73.5651; then heading southeast 1462′ through a wooded area to coordinates 40.8558, −73.5634; continuing southeast 1065′ through a wooded area to coordinates 40.8531, −73.5618; then heading northeast 1167′ along the border with a golf course to coordinates 40.8547, −73.5581; continuing northeast 317′ along the border with the golf course to coordinates 40.8552, −73.5573; then heading east-northeast 1278′ along the border with a golf course to coordinates 40.8557, −73.5527; then heading south 275′ along the border with a golf course to coordinates 40.8549, −73.5526; then heading northeast 873′ along the golf course boundary to coordinates 40.8564, −73.5501; then heading northwest 1463′ through a wooded area to coordinates 40.8602, −73.5519; then heading 615′ southwest along the border of a residential area to coordinates 40.8599, −73.5541; then heading 280′ northwest through a wooded area to coordinates 40.8604, −73.5548; then heading north-northwest 188′ along a residential driveway to coordinates 40.8609, −73.5549; then heading west 337′ along a residential driveway to coordinates 40.8609, −73.5561; then heading northwest 309′ along a residential driveway to coordinates 40.8617, −73.5565; then heading north-northwest 103′ along a residential driveway to coordinates 40.8620, −73.5566; continuing north-northwest 38′ along a residential driveway to coordinates 40.8621, −73.5566; then heading north 108′ along a residential driveway to coordinates 40.8624, −73.5566; then heading northwest 135′ along a residential driveway to coordinates 40.8627, −73.5567; continuing northwest 95′ along a residential driveway to coordinates 40.8630, −73.5568; then heading east 106′ to a residential driveway at coordinates 40.8630, −73.5565; then heading northeast 172′ along a residential driveway to coordinates 40.8631, −73.5558; continuing northeast 160′ along a residential driveway to coordinates 40.8633, −73.5553; continuing northeast 20′ along a residential driveway to coordinates 40.8633, −73.5552; continuing northeast 141′ along a residential driveway to coordinates 40.8636, −73.5549; continuing northeast 106′ along a residential driveway to coordinates 40.8639, −73.5547; then heading north-northeast 20′ along a residential driveway to coordinates 40.8639, −73.5547; continuing north-northeast 107′ along a residential driveway to coordinates 40.8642, −73.5546; continuing north-northeast 111′ along a residential driveway to coordinates 40.8645, −73.5545; continuing north-northeast 207′ along a residential driveway to coordinates 40.8650, −73.5545; then heading north 53′ along a residential driveway to coordinates 40.8652, −73.5545; then heading northeast 153′ along a paved driveway to coordinates 40.8655, −73.5540; continuing northeast 173′ along a paved driveway to coordinates 40.8657, −73.5535; continuing northeast 71′ along a paved driveway to coordinates 40.8658, −73.5533; then heading north-northeast
(E) That portion of land in the town of Oyster Bay and in the hamlet of Old Bethpage bounded as follows: Beginning at a point marked by latitude-longitude coordinates 40.7703, −73.4460; then proceeding southwest 1997′ through a wood line to Winding Road at coordinates 40.7655, −73.4493; then heading southeast 102′ along Winding Road to coordinates 40.7653, −73.4490; continuing southeast 57′ along Winding Road to coordinates 40.7652, −73.4488; then heading south-southeast 52′ along Winding Road to coordinates 40.7650, −73.4488; continuing south-southeast 99′ along Winding Road to coordinates 40.7648, −73.4487; then heading south 654′ along Winding Road to coordinates 40.7630, −73.4485; then heading southeast 24′ along a ramp to coordinates 40.7629, −73.4485; then heading northeast 2134′ through a wood line to coordinates 40.7644, −73.4411; then heading north-northwest 1197′ along the Nassau County-Suffolk County Border to coordinates 40.7677, −73.4417; then heading southwest 250′ through a wood line to coordinates 40.7676, −73.4426; then heading 132′ north-northwest along Restoration Road to coordinates 40.7679, −73.4426; then heading northeast 311′ along Restoration Road to coordinates 40.7687, −73.4422; then heading northwest 96′ along Restoration Road to coordinates 40.7689, −73.44245; continuing northwest 262′ along Restoration Road to coordinates 40.7695, −73.4430; continuing northwest 173′ along Restoration Road to coordinates 40.7699,−73.4433; continuing northwest 33′ along Restoration Road to coordinates 40.7699, −73.4434; then heading southwest 275′ along Restoration Road to coordinates 40.76942, −73.4440; continuing southwest 194′ along Restoration Road to coordinates 40.76900, −73.4445; then heading north-northwest 334′ along a gravel path to coordinates 40.7698, −73.4448; then heading northwest 364′ along a gravel path to the starting point at coordinates 40.7703, −73.4460.
(B) That portion of land in the town of Barre bounded as follows: Beginning at a point marked by latitude-longitude coordinates 43.1548, −078.1199; then east along a farm road to coordinates 43.1548, −078.1166; then south to coordinates 43.1524, −078.1167; then west to coordinates 43.1524, −078.1199; then north along a willow hedgerow to the point beginning at coordinates 43.1548, −078.1199; and
(C) That portion of land in the town of Barre bounded as follows: Beginning at a point marked by latitude-longitude coordinates 43.1551, −78.1240; then west to coordinates 43.1551, −78.1244; then southwest to coordinates 43.1550, −78.1245; then southwest to coordinates 43.1550, −78.1245; then south to coordinates 43.1549, −78.1245;
(B) The area known as “Arkport Muck North” located in the town of Dansville bounded as follows: Beginning at a point along the west bank of the Marsh Ditch that intersects a farm road marked by latitude/longitude coordinates 42.4230, −77.7121; then north along the Marsh Ditch to coordinates 42.4314, −77.7158; then west along a farm road to coordinates 42.4307, −77.7204; then south along the edge of a forest to coordinates 42.4284, −77.7194; then west along a farm road to coordinates 42.4282, −77.7201; then south along a farm road to coordinates 42.4255, −77.7189; then east along a tree line to coordinates 42.4254, −77.7180; then south along a tree line to coordinates 42.4230, −77.7157; then east to point of beginning at coordinates 42.4230, −77.7121;
(C) The area known as “Arkport Muck South” located in the town of Dansville bounded as follows: Beginning at a point along the west side of New York Route 36 marked by latitude/longitude coordinates 42.4034, −77.6986; then north along the west side of New York Route 36 to coordinates 42.4145, −77.6999; then west along a farm road to coordinates 42.4145, −77.7029; then north along a farm road to coordinates 42.4160, −77.7036; then west along a farm road to coordinates 42.4162, −77.7083; then north along the west bank of the Marsh Ditch to coordinates 42.4186, −77.7097; then west along a farm road to coordinates 42.4181, −77.7121; then north along a farm road to coordinates 42.4214, −77.7140; then west along a farm road to coordinates 42.4211, −77.7198; then south along the east side of the Conrail right-of-way (Erie Lackawanna Railroad) to coordinates 42.4050, −77.7107; then east along a farm road to coordinates 42.4049, −77.7038; then south along a farm road to coordinates 42.4034, −77.7030; then east to point of beginning at coordinates 42.4034, −77.6986;
(D) That portion of land in the town of Cohocton (formerly known as the “Werthwhile Farm”) on the north side of County Road 5 (known as Brown Hill Road), and 0.2 mile west of the junction of County Road 5 with County Road 58 (known as Wager Road); and
(E) That portion of land in the town of Fremont that is bounded as follows: Beginning at a point on Babcock Road that intersects a farm road marked by latitude/longitude coordinates 42.4368, −77.5751; then west along the farm road to coordinates 42.4367, −77.5780; then south to coordinates 42.4360, −77.5780; then west to coordinates 42.4359, −77.5807; then south to coordinates 42.4335, −77.5806; then east to coordinates 42.4333, −77.5778; then south to coordinates 42.4318, −77.5777; then east to coordinates 42.4323, −77.5771; then north to coordinates 42.4330, −77.5763; then east to coordinates 42.4330, −77.5761; then north to coordinates 42.4349, −77.5756; then east to coordinates 42.4349, −77.5749; then north to the point of beginning at coordinates 42.4368, −77.5751.
(B) That portion of land in the town of Huntington and the hamlet of Melville bounded as follows: Beginning at a point marked by latitude-longitude coordinates 40.7767, −72.4202; then proceeding southwest 788′ along Broad Hollow Rd. to coordinates 40.7746, −72.4210; then heading east 2354′ along Huntington Quadrangle Rd. to coordinates 40.7748, −72.4125; then heading south 2095′ parallel to Maxess Rd. to coordinates 40.7691, −72.4121; then heading southeast 250′ along Bayliss Rd. to coordinates 40.7689, −72.4113; then heading 2734′ north to coordinates 40.7764, −72.4114; then heading east 1820′ to coordinates 40.7767, −72.4049; then heading north 233′ along Pinelawn Rd. to coordinates 40.7773, −72.4048; then heading west 4267′ to the starting point at coordinates 40.7767, −72.4202;
(C) That portion of land in the town of Huntington and the hamlet of Melville bounded as follows: Beginning at a point marked by latitude-longitude coordinates 40.7954, −72.4080; then proceeding south 1645′ along the west boundary of White Post Farms to coordinates 40.7909, −72.4073; then proceeding east 1110′ along the south boundary of White Post Farms and a housing development to coordinates 40.7910, −72.4033; then heading north 2033′ parallel to Bedell Place to coordinates 40.7965, −72.4041; then heading southwest 1170′ along Old Country Road to the starting point at coordinates 40.7954, −72.4080;
(D) That portion of land in the town of Huntington and the hamlet of Dix Hills bounded as follows: Beginning at a point marked by latitude-longitude coordinates 40.7904, −72.3410; then proceeding southeast 306′ along Deer Park Road to coordinates 40.7896, −72.3407; continuing southeast 272′ along Deer Park Road to coordinates 40.7888, −72.3404; continuing southeast 530′ along Deer Park Road to coordinates 40.7874, −72.3399; then proceeding northeast 1002′ along the south boundary of the DeLalio Sod Company to coordinates 40.7883, −72.3364; then proceeding northwest 541′ along the east boundary of the DeLalio Sod Company and the Garden Depot to coordinates 40.7897, −72.3371; continuing northwest 554′ along the east boundary of field 15–C–21 to coordinates 40.7911, −72.3377; then proceeding southwest 952′ along the north boundary of field 15–C–21 to the starting point at coordinates 40.7904, −72.3410; and
(E) That portion of land in the town of Brookhaven and the hamlet of Manorville bounded as follows: Beginning at a point marked by latitude-longitude coordinates 40.8542, −72.8240; then proceeding northeast 442′ along South Street to coordinates 40.8545, −72.8225; continuing northeast 1086′ along South Street to coordinates 40.8550, −72.8186; then proceeding east 413′ to coordinates 40.8551, −72.8171 at the intersection of South Street and Wading River Rd.; then proceeding northwest 714′ along Wading River Road to coordinates 40.8568, −72.8183; then continuing northwest 695′ along Wading River Road to coordinates 40.8586, −72.8194; continuing northwest 497′ along Wading River Road to coordinates 40.8598, −72.8202; continuing northwest 221′ along Wading River Road to coordinates 40.8603, −72.8205; continuing northwest 203′ along Wading River Road to coordinates 40.8608, −72.8209; continuing 194′ along Wading River Road to coordinates 40.8613, −72.8212; continuing 212′ along Wading River Road to coordinates 40.8618, −72.8215; proceeding northwest 30′ to coordinates 40.8618, −72.8216; then heading 45′ west to coordinates 40.8618, −72.8218; then heading 183′ southwest along the south ramp of the Long Island Expressway to coordinates 40.8617, −72.8224; then heading west 179′ parallel with the south ramp of the Long Island Expressway to coordinates 40.8617, −72.8231; then continuing west 182′ to coordinates 40.8617, −72.8237; continuing west 299′ parallel with the south ramp of the Long Island
Animal and Plant Health Inspection Service, USDA.
Final rule.
We are amending the regulations governing the importation of plants for planting to authorize the importation of tomato plantlets from Mexico in approved growing media, subject to a systems approach. The systems approach consists of measures currently specified for tomato plants for planting not imported in growing media, as well as measures specific to all plants for planting imported into the United States in approved growing media. Additionally, the plantlets must be imported into greenhouses in the continental United States and the importers of the plantlets from Mexico or the owners of the greenhouses in the continental United States must enter into compliance agreements regarding the conditions under which the plants from Mexico must enter and be maintained within the greenhouses. This rule allows for the importation into the continental United States of tomato plantlets from Mexico in approved growing media, while providing protection against the introduction of plant pests. The rule also allows the imported greenhouse plantlets to produce tomato fruit for commercial sale within the United States.
Effective November 2, 2015.
Ms. Lydia E. Colon, PPQ, APHIS, 4700 River Road Unit 133, Riverdale, MD 20737–1236; (301) 851–2302.
The regulations in 7 CFR part 319 prohibit or restrict the importation of certain plants and plant products into the United States to prevent the introduction of quarantine plant pests. The regulations contained in “Subpart—Plants for Planting,” §§ 319.37 through 319.37–14 (referred to below as the regulations), prohibit or restrict, among other things, the importation of living plants, plant parts, and seeds for propagation or planting.
The regulations differentiate between prohibited articles and restricted articles. Prohibited articles are plants for planting whose importation into the United States is not authorized due to the risk the articles present for introducing or disseminating plant pests. Restricted articles are articles authorized for importation into the United States, provided that the articles are subject to measures to address such risk.
Section 319.37–5 of the regulations lists restricted articles that may be imported into the United States only if they are accompanied by a phytosanitary certificate that contains an additional declaration either that the restricted articles are free of specified quarantine pests or that the restricted articles have been produced in accordance with certain mitigation requirements. Within the section, paragraph (r) contains requirements for the importation of restricted articles (except seeds) of
Paragraph (r)(1) of § 319.37–5 authorizes the importation into the United States of
Conditions for the importation into the United States of restricted articles in growing media are specifically found in § 319.37–8. Within that section, the introductory text of paragraph (e) lists taxa of restricted articles that may be imported into the United States in approved growing media, subject to the mandatory provisions of a systems approach. In § 319.37–8, paragraph (e)(1) lists the approved growing media, and paragraph (e)(2) contains the provisions of the systems approach. Within paragraph (e)(2), paragraphs (i) through (viii) contain provisions that are generally applicable to all the taxa listed in the introductory text of paragraph (e), and paragraphs (ix) through (xi) contain additional taxon-specific conditions.
In response to a request from the national plant protection organization (NPPO) of Mexico, in a proposed rule
We solicited comments concerning our proposal for 60 days ending May 4, 2015. We received 19 comments by that date. They were from an NPPO, two State departments of agriculture, an organization representing State departments of agriculture, U.S. tomato producers, importers of tomato plantlets, professors who specialize in U.S. tomato production, a U.S. Senator, local and municipal governments, and a private citizen.
Most of the commenters urged us to finalize the proposed rule, as written. Several commenters were generally supportive of the rule, but requested clarifications regarding the provisions of the rule, or modification to those provisions. Finally, several commenters did not support the rule. We discuss the comments that we received below, by topic.
In the request that we received from the NPPO of Mexico to authorize the importation of tomato plantlets into the continental United States in approved growing media, the NPPO specified that the plantlets would be produced from certified seed, would be produced in greenhouses constructed and maintained to be pest-exclusionary, would be shipped in growing media maintained under similar conditions, and would be safeguarded during movement to the continental United States to prevent plant pests from being introduced to the plantlets.
To evaluate this request, we prepared a pest risk assessment (PRA) that analyzed the potential pest risks associated with the importation of tomato plantlets from Mexico produced under such conditions. The PRA concluded that a number of quarantine pests of tomato plantlets exist in Mexico, including
Based on the findings of the PRA, a risk management document (RMD) that also accompanied the proposed rule recommended that, among other requirements, the plantlets should be authorized importation subject to paragraph (r)(3) of § 319.37–5 because of the presence of
A commenter disputed the presence of
CABI, 1999.
CABI, 2012.
EPPO, 1997. Data Sheets on Quarantine Pests:
EPPO, 2006. Distribution Maps of Quarantine Pests for Europe:
EPPO. Found at
Hernández-Romano, J.,
Meng, F.,
Milling, A.,
Perea, S.J.M.,
Sanchez-Perez, A.,
Xu, J.,
For these reasons, the commenter concluded that APHIS should state that the presence of
Similarly, another commenter pointed out that
Unlike other phytopathogenic bacteria, race classifications for
However, this is not true of race 3 and biovar 2 of
Of the three articles that the PRA referenced in which
Of the remaining two articles, we agree that one (Xu
We disagree, however, that the other article (Perea
We agree with the commenter that the references are of varying reliability, but disagree with the commenter's interpretation of ISPM No. 8. ISPM No. 8 does not distinguish between reliable and unreliable records, but rather provides criteria by which an importing country should assess the relative reliability of a record in comparison to other records. The ISPM acknowledges that determining whether a particular plant pest exists in a foreign region is, however, ultimately a subjective “expert judgment” made by the importing country.
After reviewing the records available to us in light of the commenter's concerns, we have determined that there is significant evidence that
Accordingly, we consider it appropriate to maintain
In a similar vein, a commenter asked us why the proposed rule had contained
The PRA found such transmission to be highly unlikely, provided that the plantlets are produced under the provisions of the systems approach. The PRA did not evaluate the likelihood that plantlets produced under different conditions would become infected with
Several tomato producers within the United States supported the proposed rule, and stated that they would like to import tomato plantlets in growing media from Mexico if the rule is finalized. However, the commenters stated that they are certified organic by the United States Department of Agriculture (USDA), and expressed concern that several of the mitigation measures specified in the risk management document (RMD) that accompanied the proposed rule appeared to require fumigation with methyl bromide and the use of disinfectants that are not approved by USDA for organic production. The commenters noted, however, that the proposed rule itself did not appear to require either fumigation or the use of such disinfectants. The commenters inquired whether there was a discrepancy between the RMD and the proposed rule, and, if so, which provisions they would be expected to adhere to.
Paragraph (r)(3)(viii) of § 319.37–5 requires
Paragraph (r)(3)(vi) of § 319.37–5 requires all equipment that comes in contact with articles of
APHIS has determined that several disinfectants may be used to meet these sanitation requirements. One of them, hydrogen peroxide, is approved by USDA for organic production.
One commenter suggested that we should authorize the importation of tomato seeds from Mexico, rather than tomato plantlets in growing media.
The regulations already authorize the importation of tomato seeds from Mexico. The market access request from the NPPO of Mexico was for tomato plantlets in growing media.
One commenter suggested that we consider authorizing the importation of tomato plantlets from Mexico under “Good Seed and Plant Production Practices” (GSPPPs), an international accreditation standard for pest-free production of plants for planting.
Generally applicable standards such as the GSPPPs may not always address taxon-specific plant pest risks. Additionally, the regulations are currently written in a manner which does not facilitate the use of such generally applicable standards. However, if finalized, a proposed rule
Two commenters stated that certain areas of the continental United States are more hospitable to the establishment of quarantine pests of tomatoes than others, and the rule should be amended to prohibit the importation of tomato plantlets in growing media from Mexico into those areas.
If the provisions of the proposed rule are adhered to, the plantlets will present a negligible risk of introducing quarantine pests into any area of the continental United States. Therefore, the relative likelihood of establishment of these pests in a particular part of the continental United States is not germane, and we are making no changes to the provisions of the systems approach based on these comments.
We proposed that the production site where the plantlets were produced would have to test for
A commenter stated that indoor production facilities have growing cycles, rather than growing seasons, and inquired whether maintaining the records for two growing cycles would suffice to meet this requirement.
Operationally, we rely on the definition of “growing season” provided in ISPM No. 5, “Glossary of Phytosanitary Terms.”
The commenter did not specify what they meant by “growing cycle.” However, if the commenter meant the time period during which a particular set of tomato plantlets are in active growth within the producer's facility, from establishment to harvest, then the term “growing season” is equivalent to the term “growing cycle.”
We proposed that the greenhouses in which the plantlets are produced in Mexico would have to be surrounded by a 1-meter sloped buffer.
One commenter asked whether the buffer had to be around the perimeter of each of the greenhouses, or whether the greenhouses could collectively be surrounded by the buffer.
Either type of buffer suffices to meet this requirement.
We proposed that the plantlets would have to be handled and packed in a manner which precludes the introduction of
One commenter asked whether these procedures would prevent insect pests from being introduced onto the plantlets during movement to the United States.
Safeguarding procedures which prevent the introduction of
Finally, we proposed that the plantlets would have to be imported directly into a pest-exclusionary greenhouse in the continental United States.
One commenter asked whether the plantlets could be offloaded into a pest-exclusionary docking station at the same production site in the United States that contains the pest-exclusionary greenhouses, then resealed and moved to the greenhouses at a further stage of production.
Provided that the docking station has been evaluated by APHIS and provides an equivalent level of pest exclusion as do the greenhouses themselves, they may.
Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, without change.
This rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget.
In accordance with 5 U.S.C. 604, we have performed a final regulatory flexibility analysis, which is summarized below, regarding the economic effects of this rule on small entities. Copies of the full analysis are available on the Regulations.gov Web site (see footnote 1 in this document for a link to Regulations.gov) or by contacting the person listed under
The rule will allow the importation of tomato plantlets in approved growing media from Mexico into the continental United States. Currently, tomato plantlets in growing media are not admissible into the United States except from Canada. The imported plantlets will be allowed to be imported only to APHIS-approved facilities under compliance agreements, and will be used only for fruit production.
Data are not available on the production or trade of tomato plantlets. However, U.S. greenhouse (more generally termed
Reportedly, there are few nurseries in the United States that produce tomato plantlets and their volume of production is relatively small. The final rule will enable U.S. producers of protected-culture tomatoes to draw upon Mexican plantlet suppliers in addition to imports from Canada, and is expected to have a positive economic impact on the protected-culture tomato industry.
Protected-culture tomato producers are classified in the North American Industry Classification System within Other Vegetable (except Potato) and Melon Farming (NAICS 111219), for which the Small Business Administration small-entity standard is annual receipts of not more than $750,000. The average market value of agricultural products sold by operations in this industry in 2012 was about $314,000. While we are unable to determine the number of businesses that will be affected by the final rule, we can assume that at least some of them are small entities.
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.
An environmental assessment and finding of no significant impact have been prepared for this final rule. The environmental assessment provides a basis for the conclusion that the importation into the continental United States of tomato plantlets in growing media from Mexico, subject to a required systems approach, will not have a significant impact on the quality of the human environment. Based on the finding of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared.
The environmental assessment and finding of no significant impact were prepared in accordance with: (1) The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321
The environmental assessment and finding of no significant impact may be viewed on the Regulations.gov Web site. Copies of the environmental assessment and finding of no significant impact are also available for public inspection at USDA, room 1141, South Building, 14th Street and Independence Avenue SW., Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, except holidays. Persons wishing to inspect copies are requested to call ahead on (202) 799–7039 to facilitate entry into the reading room. In addition, copies may be obtained by writing to the individual listed under
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
The Animal and Plant Health Inspection Service is committed to compliance with the EGovernment Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this final rule, please contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851–2727.
Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables.
Accordingly, we are amending 7 CFR part 319 as follows:
7 U.S.C. 450, 7701–7772, and 7781–7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3.
The addition and revision read as follows:
(e) * * *
(2) * * *
(xii) Plantlets of
(A) The plantlets must be produced in accordance with § 319.37–5(r)(3);
(B) The plantlets can only be imported into the continental United States, and may not be imported into Hawaii or the territories of the United States; and
(C) The plantlets must be imported from Mexico directly into a greenhouse in the continental United States, the owner or owners of which have entered into a compliance agreement with APHIS. The required compliance agreement will specify the conditions under which the plants must enter and be maintained within the greenhouse, and will prohibit the plantlets from being moved from the greenhouse following importation, other than for the appropriate disposal of dead plantlets.
(D) If all of the above requirements are correctly complied with, then the tomato fruit produced from the imported greenhouse plantlets may be shipped from the greenhouses for commercial sale within the United States.
Animal and Plant Health Inspection Service, USDA.
Final rule.
We are changing the hourly rates charged for Sundays, holidays, or other overtime work performed by employees of the Animal and Plant Health Inspection Service (APHIS) for any person, firm, or corporation having ownership, custody, or control of regulated commodities or articles subject to agricultural inspection, laboratory testing, certification, or quarantine under the regulations. We are increasing these overtime rates for each of the fiscal years 2016 through 2018 to reflect the anticipated costs associated with providing these services during each year. Establishing the overtime rate changes in advance will allow users of APHIS' services to incorporate the rates into their budget planning. We are also clarifying the regulations to indicate that agricultural inspections performed by the Department of Homeland Security (DHS) may be billed in accordance with DHS overtime regulations for services performed outside of regular business hours, as DHS rates may differ from those charged by APHIS.
Effective November 2, 2015.
For information concerning Plant Protection and Quarantine program operations, contact Ms. Diane L. Schuble, AQI User Fee Coordinator, Office of the Executive Director-Policy Management, PPQ, APHIS, 4700 River Road Unit 131, Riverdale, MD 20737–1231; (301) 851–2338.
For information concerning Veterinary Services program operations, contact Ms. Carol Tuszynski, Director, Planning, Finance, and Strategy Staff, Program Support Services, VS, APHIS,
For information concerning APHIS overtime fee development, contact Ms. Adelaide Feukam, Auditor, Review and Analysis, Financial Management Division, MRPBS, APHIS, 4700 River Road Unit 55, Riverdale, MD 20737; (301) 851–2601.
For information concerning DHS overtime fees, contact Mrs. Kara Welty, Chief, Debt Management Branch, Indianapolis, CBP, DHS, 6650 Telecom Drive Suite 100, Indianapolis, IN 46278–2010; (317) 614–4614.
The regulations in 7 CFR chapter III and 9 CFR chapter I, subchapters D and G, require inspection, laboratory testing, certification, or quarantine of certain animals, poultry, animal byproducts, germ plasm, organisms, vectors, plants, plant products, or other regulated commodities or articles intended for importation into, or exportation from, the United States. With some exceptions, which are explained below, when these services must be provided by an Animal and Plant Health Inspection Service (APHIS) employee on a Sunday or on a holiday, or at any other time outside the APHIS employee's regular duty hours, the Government charges an hourly overtime fee for the services in accordance with 7 CFR part 354 and 9 CFR part 97.
Based on changes to the costs associated with providing agricultural inspection, laboratory testing, certification, and quarantine services, we determined that adjustments to the overtime rates in 7 CFR part 354 and 9 CFR part 97 were necessary in order for APHIS to recover the full cost of providing these services. Therefore, we proposed to set hourly overtime rates for inspection, laboratory testing, certification, and quarantine services provided outside of an employee's normal tour of duty for fiscal years (FYs) 2014 through 2018. Our proposal was published in the
We also proposed to include language in 7 CFR 354.1, 9 CFR 97.1, and 9 CFR 130.50 to clarify and inform the public that any agricultural inspection performed by an employee of the Department of Homeland Security (DHS) Bureau of Customs and Border Protection (CBP) on a Sunday, holiday, or anytime outside of the employee's normal tour of duty may be billed in accordance with the regulations in 5 CFR part 551, 7 CFR 354.1, 9 CFR 97.1, 9 CFR 130.50, or 19 CFR 24.16. Such billing is necessary because the costs associated with the DHS agricultural inspections and incurred by DHS may differ from those incurred by APHIS. Therefore, varying overtime charges may apply in such circumstances in order for DHS to properly recover their costs and adequately fund their program operations.
We solicited comments concerning our proposal for 60 days ending June 24, 2014. We received 43 comments by that date. They were from producers, importers, industry groups, and private individuals. Two were supportive of the proposed action. The remainder are discussed below by topic.
As previously stated, we proposed to establish the hourly overtime rates for FY 2014 through FY 2018. We note that, as FYs 2014 and 2015 have ended, the overtime rates covered by this final rule are now only for FYs 2016 through 2018. The FY 2016 rates will become effective 30 days after the date of publication of this final rule; the FY 2017 and FY 2018 rates would become effective on the first day of each of the fiscal years, and the FY 2018 rates would remain in effect until new rates were established.
One commenter stated that our aim of seeking set rates for anticipated costs over a 5 year period is too speculative and far too difficult to predict with accuracy. The commenter suggested that APHIS use a 5 year projection as a planning tool only and constrain specific overtime cost increases to a shorter timeframe.
We disagree with the commenter's assessment. Based on our experience with past overtime fee increases, information regarding such increases that covers a longer timeframe allows users of APHIS' services to incorporate the rates into their budget planning. In addition, we arrive at our projected figures using those gross domestic product (GDP) figures provided by the Office of Management and Budget (OMB) in the Presidential budget, which is the Government standard for such fees and is not subject to rate instability. Moreover, as explained above, the actual timeframe of this rule will be based on a shorter 3 year period since it will only apply to FYs 2016 through 2018.
The commenter went on to assert that our calculations should address not only the cost of providing overtime service, but also specify what steps are being taken to reduce costs to the Agency and thereby also reduce customer costs.
While the main cost driver of reimbursable overtime is the cost of salaries and benefits, APHIS has taken steps in recent years to achieve efficiencies as part of United States Department of Agriculture's (USDA) Blueprint for Stronger Service.
We calculated our overtime rates to cover the full cost of providing inspection, testing, certification, or quarantine services at laboratories, border ports, ocean ports, rail ports, quarantine facilities, and airports outside of the normal tour of duty of the employee providing these services. The cost of providing these services includes direct and indirect costs. The direct costs are an employee's salary and specific benefits, which are APHIS' payment of the hospital insurance tax and its contribution to the Federal Insurance Contribution Act (FICA), and the Agency's costs for work performed at night. The indirect costs are area delivery costs, billing and collection costs, program direction and support costs, central/departmental charges, and unfunded leave costs.
A number of commenters observed that, in the calculation of overtime rates, only the variable cost of providing the additional service outside of regular business hours should be included in the assessment of the overall cost. Specifically, the commenters stated that there is no justification for the inclusion of most of the components identified in
We followed Federal guidance related to fee setting and managerial cost accounting in determining program costs. Specifically, we followed OMB Circular A–25: User Charges, which provides guidance on setting fees in the Federal Government, and SFAS No. 4, which includes, among other things, a definition of full cost. OMB Circular A–25, which may be viewed at
Another commenter asked to review APHIS's full revenue-costs statements as well as the full economic impact assessment. The commenter stated that the information was not included with the proposed rule.
Our full calculation of all aspects of overtime fees, starting with direct labor costs and including all indirect costs and overhead elements, was included in the proposed rule, which is available for public review on the Internet at:
As detailed above, APHIS calculates its overtime fees based on a variety of sources apart from employee salary considerations. Per OMB Circular A–25, the overtime program is a full cost recovery program, which includes the direct and indirect costs outlined previously.
One commenter stated that APHIS should reconsider its cost estimates since the initial impetus for the proposed rule was work done in 2010 at the height of the financial crisis. The commenter went on to say that, since that time, the rate of importation and export has increased significantly, which would increase Agency funds that might be used to cover these costs instead.
We disagree with the commenter's assessment. While there are other components involved, much of the cost of overtime inspection is made up of inspector salaries. The APHIS budget provides funding for inspectors working within business hours, Monday through Friday, except holidays. Any work performed outside that timeframe is, by definition, additional and irregular. As detailed in OMB Circular A–25, Federal agencies are charged to recoup their costs in such instances via the assessment of overtime fees. Any additional funds that APHIS (or DHS for that matter) may receive via any increases in trade would remain in the accounts used by the specific Agency and programs that provide the services and incur the costs.
Two commenters stated that most, if not all, of the ports require that overtime be requested and paid for in a minimum of 4-hour blocks regardless of whether those 4 hours are needed or used. The commenters suggested that APHIS change its overtime billing policy so that importers would only be charged for the time required to conduct the requested inspection. The commenters also suggested that, if an inspector is called for overtime work in the 4 hour block described above and the whole of that time is not used, that inspector should then remain onsite for the remainder of the 4 hour time period in order to deal with any other vessels or cargoes that may arrive and require immediate inspection.
In § 354.1, paragraph (a)(2) states that a minimum charge of 2 hours will be made for inspection services performed by an APHIS employee outside of his or her normal tour of duty on Saturdays, holidays, weekdays, or Sundays. In addition, overtime fees may include a commuted traveltime period (CTT), which is established by APHIS to cover the time an employee spends reporting to and returning from the place where the requested overtime duties are performed.
Two commenters observed that, in many instances, vessels and cargoes are ready for inspection during normal business hours only to find that DHS inspectors are not available due to the volume of inspections required for other vessels. The commenters stated that users should not be made to pay for services rendered in overtime periods that could have been conducted during normal business hours had sufficient personnel been available.
We have considered the commenters' point and have received detailed information from DHS regarding their staffing policies at the ports. Overall, DHS employs a rigorous, data-driven methodology to identify staffing requirements. It is composed of multiple elements—some fixed, others variable—that may be adjusted according to changing priorities, risks, and threats. In early 2014, a risk-based Agriculture Resource Allocation Model was finalized, which will serve as an important component of DHS's methodology. The Agriculture Resource Allocation Model will more accurately calculate the number of agricultural inspectors required to efficiently handle workflow at the ports. DHS will integrate the results of the Agriculture Resource Allocation Model into its existing methodology in order to provide a more holistic view of DHS's staffing requirements. Generally speaking, APHIS and DHS staffing decisions for agricultural inspections are continuously being reformulated based on changing conditions so that the ports may operate at a constantly improving level of service.
Two commenters stated that the regulations should stipulate that any overtime fees collected should be returned to the port where the services are rendered. The commenters said that this would ensure that sufficient funds are available where needed, and the Agencies would not be required to utilize appropriated funds or cash reserves to cover expenses associated with overtime fees.
We disagree with the commenters. It would be administratively burdensome for APHIS (or DHS for that matter) to maintain and track reimbursable overtime collections for agricultural inspection to a port-by-port level. Because the application of reimbursable overtime rates distinctively mirrors the work the employees perform and are paid for, there is no need to track collections and costs to this level.
Two commenters observed that both APHIS and DHS must be able to provide invoices for all overtime fees in a timely manner. The commenters suggested that the regulations stipulate that invoices will be provided within 30 days of the inspection date.
Comments referring to specific billing practices are outside the scope of the current rulemaking. Invoices are generally provided simultaneous to inspection; however the commenters should contact the port director with any questions or concerns about the timeliness of billing.
Other commenters stated that it would be possible for APHIS and DHS to assess overtime fees at a lower rate if industry were involved in negotiations between those Agencies and the inspectors' union.
Any discussion of union contract negotiation is outside the scope of the current rulemaking.
A commenter observed that greater responsiveness to current industry practices is needed. The commenter went on to state that, at the port in Atlanta, GA, importers cannot request weekend overtime after 3 p.m. on Friday, however it is impossible to determine with certainty by that time how much overtime will be necessary. The commenter is engaged in the importation of plant cuttings or live plants, which are perishable, and the busiest importing days, based on industry need and long-established industry practice, include Saturdays and Sundays.
Another commenter stated that the port in Miami, FL, had recently extended its weekday operational hours. The commenter urged APHIS to maintain those hours.
As previously stated, APHIS leaves such administrative details as the deadline for requesting weekend overtime and the operational hours of the ports to the knowledge and discretion of those individual ports. If the first commenter wishes to propose an extension of the deadline for requesting weekend overtime and the second commenter would like to maintain extended weekday hours of operation they should contact their local port directors.
A number of commenters expressed concern at the cost numbers supplied by APHIS in the proposed rule.
Several commenters observed that the proposed rule would increase the cost for overtime services by 30 to 49 percent (some commenters cited the increase as 45 to 55 percent); a number that represents 3 to 5 times the rate of inflation since the last increase in 2002. Further, the commenters remarked that the U.S. Department of Labor had reported only a 10 percent increase in the Consumer Price Index since 2002. The commenters were troubled by the difference between the inflation rate, the Consumer Price Index rate, and the proposed percentage increase to overtime fees.
Overtime fees are not solely based on either the rate of inflation or the Consumer Price Index. As stated previously, the cost of providing these services includes direct and indirect costs. The direct costs are an employee's salary and specific benefits, which are APHIS' payment of the hospital insurance tax and its contribution to the FICA, and the Agency's costs for work performed at night. The indirect costs are area delivery costs, billing and collection costs, program direction and support costs, central/departmental charges, and unfunded leave costs.
Another commenter suggested that the cost increases should be made incrementally over the next several years to lessen the burden on producers and exporters and help them maintain their competitive position.
A phase-in of the proposed changes would simply delay achieving the rule's objectives: To properly recover costs and adequately fund program operations. We would add that the decision to request overtime services, and therefore to incur additional costs, is left to the importer and such importers may realize price efficiencies by scheduling inspections during regular business hours.
Several commenters observed that the increase in the overtime fees will come in conjunction with a new fee of $375 per treatment for various types of treatments currently offered at no charge. The commenters asserted that the cumulative effect of these cost increases will have a chilling effect on the perishable goods import/export market in the United States.
The fee to which the commenters refer was included in a proposal to add new fee categories and adjust current fees charged for certain agricultural quarantine and inspection services provided in connection with certain commercial vessels, commercial trucks, commercial railroad cars, commercial aircraft, and international passengers arriving at ports in the customs territory of the United States.
A number of commenters from Florida stated that the proposed increase in overtime fees would prove detrimental to trade, commerce, and the economy of that State.
We disagree with the commenters' assessment. Based on the economic assessment included with the proposal, we estimate that the impact of this rule will be minor. Further, the commenters did not provide any economic data in support of their claim for APHIS to examine.
Another commenter observed that Florida has successfully worked with APHIS to implement the first ever cold treatment pilot project for perishable commodities. The commenter was concerned that increased overtime fee rates would prove economically detrimental to the future of that project both in Florida and other areas where cold treatment is already permitted.
We disagree with the commenter's statement. APHIS' agreement with the shipping lines in the Florida cold treatment pilot program requires that cold treatment be completed before the ship arrives at the port because there are no approved cold treatment facilities available in Florida. Since the cold treatment must take place prior to shipment arrival, any information regarding application of cold treatment may be transmitted to the ports during regular business hours.
We received several requests for an extension of the comment period on the proposed rule. After careful consideration, we determined to keep the original deadline. While APHIS has not updated its overtime fees since 2005, these increases remain a routine cost-recovery measure for the Agency.
Two commenters stated that, to the extent APHIS and CBP are performing the same inspection services, the
We agree with the commenters' observations. Providing clarity while allowing APHIS and DHS to recoup inspection costs was our intent in publishing this rule.
Finally, one commenter said that there is confusion about which agencies have responsibility for and jurisdiction over various functions. The commenter said that the rule should clearly delineate which functions are performed by APHIS and which are performed on behalf of APHIS by DHS. The commenter concluded that fees should be listed only in the relevant sections of the CFR, and there must be no question that both APHIS and DHS are not billing individually for the same services.
Generally speaking, most of the agricultural inspections discussed in this rule are performed by DHS pursuant to the Homeland Security Act. Examples of agricultural inspections performed by APHIS include those associated with the importation of live plants, which occur at designated plant inspection stations, and APHIS oversight of certain port of entry treatments. As stated in the proposed rule, DHS conducts billings of their overtime charges in accordance with the regulations in 5 CFR part 551, 7 CFR 354.1, 9 CFR 97.1, 9 CFR 130.50, or 19 CFR 24.16. The DHS fees for agricultural inspection overtime work are not listed in a specific section of the CFR as the Homeland Security Act that first established DHS did not provide any new regulatory authority to DHS but rather used the existing regulatory authority of those agencies or programs whose functions were transferred to DHS. So APHIS' regulatory authority is used to enumerate or revise agricultural inspection overtime rates.
Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, with a few, minor editorial changes.
This final rule is subject to Executive Order 12866. However, for this action, the Office of Management and Budget has waived its review under Executive Order 12866.
In accordance with 5 U.S.C. 604, we have performed a final regulatory flexibility analysis, which is summarized below, regarding the economic effects of this rule on small entities. Copies of the full analysis are available on the Regulations.gov Web site (see footnote 1 in this document for a link to Regulations.gov) or by contacting the person listed under
APHIS charges hourly overtime rates to individuals, firms, and corporations requesting inspection, testing, certification, or quarantine services at laboratories, border ports, ocean ports, rail ports, quarantine facilities, and airports outside of the regularly established hours of service. These overtime rates are charged to the individuals, firms, or corporations requesting the services, and the fees vary depending on the type of service performed and when the service is provided. This rule amends the fees for reimbursable overtime to reflect increased costs associated with providing these services.
APHIS is updating these fees to take into account the routine increases in the cost of conducting business during overtime hours. The cost to the import/export program to provide these services has increased year to year, and these proposed increases are necessary to more accurately provide the full cost recovery of this Agency activity.
Currently, APHIS charges $51 per hour per employee for inspection, testing, certification, or quarantine of animals or agricultural products outside the employee's regular tour of duty, and $67 per hour per employee for inspection, testing, certification, or quarantine of animals or agricultural products that is performed on Sundays outside the employee's regular tour of duty. APHIS charges $41 per hour per employee for commercial airline inspection services that are performed outside of the regularly established hours of service on a holiday or any other period and $55 per hour per employee for commercial airline inspection services that are performed outside of the regularly established hours of service on a Sunday. This rule establishes hourly overtime rates for each of the fiscal years 2016 through 2018. From FY 2016 through FY 2018, these rates would increase by $24 for inspection, testing, certification, or quarantine of animals or agricultural products outside the employee's regular tour of duty (Monday through Saturday and holidays), by $33 for inspection, testing, certification, or quarantine of animals or agricultural products that is performed on Sundays outside the employee's regular tour of duty, by $24 for commercial airline inspection services that are performed outside of the regularly established hours of service on a holiday or any other period, and by $31 for commercial airline inspection services that are performed outside of the regularly established hours of service on a Sunday.
This program/activity is listed in the Catalog of Federal Domestic Assistance under No. 10.025 and is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV.)
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. This rule: (1) Preempts all State and local laws and regulations that are inconsistent with this rule; (2) has no retroactive effect; and (3) does not require administrative proceedings before parties may file suit in court challenging this rule.
This rule contains no new information collection or recordkeeping requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Animal diseases, Exports, Government employees, Imports, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Travel and transportation expenses.
Exports, Government employees, Imports, Livestock, Poultry and poultry products, Travel and transportation expenses.
Animals, Birds, Diagnostic reagents, Exports, Imports, Poultry and poultry products, Quarantine, Reporting and recordkeeping requirements, Tests.
Accordingly, we are amending 7 CFR part 354 and 9 CFR parts 97 and 130 as follows:
7 U.S.C. 7701–7772, 7781–7786, and 8301–8317; 21 U.S.C. 136 and 136a; 49 U.S.C. 80503; 7 CFR 2.22, 2.80, and 371.3.
The addition and revisions read as follows:
(a)(1) Any person, firm, or corporation having ownership, custody, or control of plants, plant products, animals, animal byproducts, or other commodities or articles subject to inspection, laboratory testing, certification, or quarantine under this chapter and subchapter D of chapter I, title 9 CFR, who requires the services of an employee of the Animal and Plant Health Inspection Service or U.S. Customs and Border Protection on a Sunday or holiday, or at any other time outside the regular tour of duty of that employee, shall sufficiently in advance of the period of Sunday, holiday, or overtime service request the Animal and Plant Health Inspection Service or U.S. Customs and Border Protection inspector in charge to furnish the service during the overtime or Sunday or holiday period, and shall pay the Government at the rate listed in the following table, except as provided in paragraphs (a)(1)(i), (ii), and (iii), and (a)(3) of this section:
(iii) * * *
(3) The overtime rate and all other charges, including minimum and commute compensation charges, to be billed for services provided by an employee of U.S. Customs and Border Protection shall be charged according to the provisions of this section, 5 CFR part 551, or 19 CFR 24.16.
7 U.S.C. 8301–8317; 49 U.S.C. 80503; 7 CFR 2.22, 2.80, and 371.4.
The addition and revisions read as follows:
(a) Any person, firm, or corporation having ownership, custody, or control of animals, animal byproducts, or other commodities or articles subject to inspection, laboratory testing, certification, or quarantine under this subchapter and subchapter G of this chapter, and who requires the services of an employee of the Animal and Plant Health Inspection Service or U.S. Customs and Border Protection on a Sunday or holiday, or at any other time outside the regular tour of duty of the
(3) * * *
(4) The overtime rate and all other charges, including minimum and commute compensation charges, to be billed for services provided by an employee of U.S. Customs and Border Protection shall be charged according to the provisions of this section, 5 CFR part 551, or 19 CFR 24.16.
5 U.S.C. 5542; 7 U.S.C. 1622 and 8301–8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 3701, 3716, 3717, 3719, and 3720A; 7 CFR 2.22, 2.80, and 371.4.
The addition and revision read as follows:
(b) * * *
(3) * * *
(i) * * *
(iii) For information on rules pertaining to the charges associated with employees of U.S. Customs and Border Protection performing agricultural inspection services, please see 7 CFR 354.1 and 9 CFR 97.1.
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for certain Lockheed Martin Corporation/Lockheed Martin Aeronautics Company Model 188 series airplanes. This AD was prompted by an evaluation by the design approval holder (DAH) indicating that the upper and lower wing skin planks at the attachment of the main landing gear (MLG) ribs at certain wing-stations are subject to widespread fatigue damage (WFD). This AD requires an inspection (for cracking) and modification of the chordwise fastener rows of the upper and lower wing planks at the attachments to the MLG ribs at certain wing-stations. We are issuing this AD to prevent fatigue cracking of the upper and lower wing skin planks at the attachment of the MLG ribs, which could result in failure of the wing.
This AD is effective November 6, 2015.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 6, 2015.
For service information identified in this AD, contact Lockheed Martin Corporation/Lockheed Martin Aeronautics Company, Airworthiness Office, Dept. 6A0M, Zone 0252, Column P–58, 86 S. Cobb Drive, Marietta, GA 30063; telephone 770–494–5444; fax 770–494–5445; email
You may examine the AD docket on the Internet at
Carl Gray, Aerospace Engineer, Airframe Branch, ACE–117A, FAA, Atlanta Aircraft Certification Office (ACO), 1701 Columbia Avenue, College Park, GA 30337; phone: 404–474–5554; fax: 404–474–5605; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Lockheed Martin Corporation/Lockheed Martin Aeronautics Company Model 188 series airplanes. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. We received no comments on the NPRM (80 FR 15525, March 24, 2015) or on the determination of the cost to the public.
We reviewed the relevant data and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (80 FR 15525, March 24, 2015) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (80 FR 15525, March 24, 2015).
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We reviewed Lockheed Martin Electra Service Bulletin 88/SB–721, dated April 30, 2014. This service information describes procedures for doing a bolt-hole eddy current (BHEC) inspection for cracking and repair of cracking. This service information also describes procedures for modification of the chordwise fastener rows of the upper and lower wing planks at the attachments to the MLG ribs at wing-station (WS) 167 and WS 209 by removing the original fasteners and replacing them with new first oversize fasteners of the same type or approved substitute type for original fasteners. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 4 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We have received no definitive data that will enable us to provide cost estimates for the on-condition actions specified in this AD.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective November 6, 2015.
None.
This AD applies to Lockheed Martin Corporation/Lockheed Martin Aeronautics Company Model 188A and 188C airplanes, certificated in any category, serial numbers 1001 and subsequent.
Air Transport Association (ATA) of America Code 57, Wings.
This AD was prompted by an evaluation by the design approval holder indicating that the upper and lower wing skin planks at the attachment of the main landing gear (MLG) ribs at certain wing-stations are subject to widespread fatigue damage. We are issuing this AD to prevent fatigue cracking of the upper and lower wing skin planks at the attachment of the MLG ribs, which could result in failure of the wing.
Comply with this AD within the compliance times specified, unless already done.
At the later of the times specified in paragraphs (g)(1) and (g)(2) of this AD: Remove the chordwise fastener rows of the upper and lower wing planks at the attachments to the MLG ribs at wing-station (WS) 167 and WS 209; do a bolt-hole eddy current (BHEC) inspection to detect cracking of the fastener rows; and replace the original fasteners with new, first oversize fasteners; in accordance with the Accomplishment Instructions of Lockheed Martin Electra Service Bulletin 88/SB–721, dated April 30, 2014. If any cracking is found during any inspection required by this paragraph: Before further flight, repair the cracking, in accordance with the Accomplishment Instructions of Lockheed Martin Electra Service Bulletin 88/SB–721, dated April 30, 2014.
(1) At the applicable time specified table 1 of paragraph 1.E., “Compliance,” of Lockheed Martin Electra Service Bulletin 88/SB–721, dated April 30, 2014. Where table 1 of paragraph 1.E., “Compliance,” of Lockheed Martin Electra Service Bulletin 88/SB–721, dated April 30, 2014, specifies “Flt. Hrs,” this AD specifies “total flight hours.”
(2) Within 365 days or 600 flight hours after the effective date of this AD, whichever occurs first.
Although Lockheed Martin Electra Service Bulletin 88/SB–721, dated April 30, 2014, specifies to submit certain information to the manufacturer, this AD does not include that requirement.
(1) The Manager, Atlanta ACO, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (j) of this AD.
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
For more information about this AD, contact Carl Gray, Aerospace Engineer, Airframe Branch, ACE–117A, FAA, Atlanta ACO, 1701 Columbia Avenue, College Park, GA 30337; phone: 404–474–5554; fax: 404–474–5605; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Lockheed Martin Electra Service Bulletin 88/SB–721, dated April 30, 2014.
(ii) Reserved.
(3) For Lockheed service information identified in this AD, contact Lockheed Martin Corporation/Lockheed Martin Aeronautics Company, Airworthiness Office, Dept. 6A0M, Zone 0252, Column P–58, 86 S. Cobb Drive, Marietta, GA 30063; telephone 770–494–5444; fax 770–494–5445; email
(4) You may view this service information at FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
We are adopting a new airworthiness directive (AD) for The Boeing Company Model 777 airplanes equipped with Rolls-Royce Trent 800 series engines. This AD was prompted by reports of in-flight separation of the engine's aft plug from the forward plug, which are the two parts of the turbine exhaust plug assembly. This AD requires installation of a serviceable turbine exhaust plug assembly (for certain airplanes), and a general visual inspection (for certain airplanes) to determine the diameter of the bolt used at the forward and aft plug interface, and applicable corrective actions. We are issuing this AD to prevent separation of the aft plug from the forward plug of the turbine exhaust plug assembly, which could result in parts departing the airplane and hitting the empennage, and destabilizing the airplane during a critical flight phase. In addition, parts remaining on a runway could pose a hazard to another airplane.
This AD is effective November 6, 2015.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 6, 2015.
For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone 206–544–5000, extension 1; fax 206–766–5680; Internet
You may examine the AD docket on the Internet at
Kevin Nguyen, Aerospace Engineer, Propulsion Branch, ANM–140S, Seattle Aircraft Certification Office (ACO), FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6501; fax: 425–917–6590; email:
We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to The Boeing Company Model 777 airplanes equipped with Rolls-Royce Trent 800 series engines. The NPRM published in the
We gave the public the opportunity to participate in developing this AD. The following presents the comments received on the NPRM (79 FR 11725, March 3, 2014; corrected March 11, 2014 (79 FR 13592); and the FAA's response to each comment.
Cathay Pacific requested that we ensure that the AD compliance date will be the same as the compliance time of Boeing Special Attention Service Bulletin 777–78–0051, Revision 3, dated August 23, 2012; or Boeing Special Attention Service Bulletin 777–78–0051, Revision 4, dated February 7, 2014. Cathay Pacific reasoned that paragraph (i) of the proposed AD specified compliance within 60 months after the effective date of the proposed AD, and both revisions of this service information specify a compliance time that is within 60 months after the Revision 3 date of the service bulletin.
We infer that Cathay Pacific is requesting that we reduce the compliance time of this final rule to match the compliance time listed in the service information. We do not agree with the commenter's request. In developing an appropriate compliance time for this action, we considered not only the degree of urgency associated with addressing the subject unsafe condition, but the manufacturer's recommendation for an appropriate compliance time, the time required for the rulemaking process, the availability of required parts, and the practical aspect of installing the required modification within an interval of time that corresponds to the typical scheduled maintenance for the majority of affected operators. Under the provisions of paragraph (l) of this AD,
Cathay Pacific requested that we revise paragraph (j) of the proposed AD; corrected March 11, 2014 (79 FR 13592) to define “serviceable” plug assemblies. Cathay Pacific reasoned that both pre- and post-Boeing Service Bulletin 777–78–0051 plug assemblies can be installed, and the modification can be completed before the required compliance time of the NPRM (79 FR 11725, March 3, 2014; corrected March 11, 2014 (79 FR 13592)).
We do not agree to revise paragraph (j) of this AD because serviceable assemblies are already defined in paragraph (h) of this AD. This definition applies to the entire AD. Also, pre- Boeing Service Bulletin 777–78–0051 plug assemblies do not meet the definition of serviceable, as specified in the service information.
American Airlines (AA) requested that we revise paragraph (h) of the proposed AD to add another definition: Serviceable plug assemblies, as those maintained in accordance with the operator's continued airworthiness maintenance program (CAMP), prior to issuance of Boeing Special Attention Service Bulletin 777–78–0051, Revision 3, dated August 23, 2012. AA explained that prior to release of Boeing Special Attention Service Bulletin 777–78–0051, Revision 3, dated August 23, 2012, due to reported events of exhaust plug losses by other operators, AA recognized that multiple removals of the exhaust aft plug causes the 3/16″ nutplate locking feature to wear out, which could then result in loss of the aft plug. As a result, AA implemented a maintenance program as part of its CAMP, which offers a level of safety equivalent to that of Boeing Special Attention Service Bulletin 777–78–0051, Revision 3, dated August 23, 2012. During every engine removal, for a refurbishment or overhaul shop visit, the pre-Boeing Special Attention Service Bulletin 777–78–0051, Revision 3, dated August 23, 2012, exhaust aft plug nutplates are replaced with new nutplates.
In addition, AA stated that the holes are inspected for elongation and cracks in accordance with procedures equivalent to Boeing Special Attention Service Bulletin 777–78–0051 inspection procedures. Model 777 Airplane Maintenance Manual Chapter 78–11–02–400–803–R00, requires that the minimum fastener run‐on torque of 2 in‐lbs is met during every installation of the aft exhaust plug. In addition, each of the exhaust aft plug fasteners receives a general visual check, using a ladder/stand and a bright light, every 150 flight hours. AA expressed that it is currently the largest Model 777–200 Trent 800 operator in the worldwide fleet and has not lost an exhaust aft plug due to loose or missing fasteners, as its CAMP demonstrates an equivalent level of safety to the service information.
As an alternative, AA requested that we revise the NPRM (79 FR 11725, March 3, 2014; corrected March 11, 2014 (79 FR 13592)) to include, as serviceable exhaust aft plugs, those maintained in accordance with the operator's own maintenance program, such as AA's approved CAMP prior to issuance of Boeing Special Attention Service Bulletin 777–78–0051, Revision 3, dated August 23, 2012, and to remain in service until the next engine removal for refurbishment or overhaul shop visit, or 60 months from the effective date of the AD, whichever is later.
We do not agree to include the requested provision. The maintenance program described by AA is likely to be acceptable in lieu of direct compliance with portions of this AD; however, the description of that program provided in AA's comment is not sufficient to serve as engineering data for the FAA to approve as an optional method of compliance in this AD. Operators can submit a request for approval of an alternative method of compliance (AMOC), with a more detailed proposal to use the maintenance program, if sufficient data are submitted to substantiate that the change would provide an acceptable level of safety. We have not changed this AD in this regard.
Boeing and Cathay Pacific requested that we revise paragraph (j) of the proposed AD to change the installation limitation from the effective date of the AD to the compliance deadline for the AD. Boeing reasoned that paragraph (j) of the proposed AD currently creates an alternative and indeterminate compliance deadline. Boeing explained that during the compliance interval and prior to the AD deadline, operators may be required, due to unforeseen circumstances, to install a unit that is not a serviceable unit, and that under the current wording, this would unnecessarily ground the airplane.
We do not agree to revise paragraph (j) of this AD to change the installation limitation from the effective date of the AD to the compliance date of the AD. Grace period compliance times are provided in ADs in recognition that an immediate unscheduled modification requirement would be disruptive. A grace period is included to give operators a reasonable period of time to schedule and perform actions that are required by the AD and that otherwise would not have occurred. A parts installation limitation is included in some cases to require that, if the parts affected by the AD are already being removed for a reason other than the AD itself, that opportunity to correct the unsafe condition should be taken. We determine whether such a parts installation limitation should be included in the AD, and what the specific requirements of the limitation will be, based on the risk level associated with the unsafe condition and the expected availability of required replacement parts.
In this case, we made a determination that the risk warranted the consideration of a parts installation limitation. We also determined that sufficient parts would be available to meet that limitation, and that sufficient time to perform any required actions to make a nozzle assembly serviceable as defined in paragraph (h) of this AD would exist in situations where the nozzle might be removed in maintenance. Specifically, we considered the case of an unscheduled engine change where an operator may not have included a serviceable nozzle assembly with the replacement engine. Modification of a nozzle assembly to meet the definition of a serviceable nozzle can be performed in roughly the same or less elapsed time than it takes to perform the engine replacement itself. We did not foresee any other commonly occurring situation where an engine nozzle assembly would be removed for maintenance. However, as discussed in response to the comment issue “Request to Revise Definition of a Serviceable Assembly,” if an operator specifically and adequately addresses the management of this unsafe condition within its CAMP, we will consider AMOC approvals to allow installation of nozzle assemblies that do not meet the definition of serviceable nozzle in paragraph (h) of this AD.
We clarified paragraph (j) of this AD as a result of these comments. We considered the explanatory statements about the intent of the parts installation limitation language used in several
AA requested that we clarify paragraph (j) of the proposed AD. AA explained that paragraph (j) of the proposed AD allows that only a serviceable turbine exhaust plug assembly may be installed on any airplane as of the effective date of this AD, while paragraph (i) of the proposed AD requires a compliance time within a certain time after the effective date of this AD, without any referral to serviceable turbine exhaust plug assembly. AA reasoned that as written, these steps are confusing and could lead operators to believe the actions required by the AD are due as of the effective date of this AD.
We agree with the commenter and have clarified paragraph (j) of this AD by including references to paragraphs (h)(1) and (h)(2) of this AD.
Boeing requested that we revise paragraph (k)(3) of the proposed AD (paragraph (l)(3) of this AD) to indicate that an AMOC, approved for a repaired serviceable unit is to be attached to, and travel with, the repaired serviceable unit. Boeing explained that the AMOC approval should apply to the deviation on the serviceable unit and thereby travel with the serviceable unit, which is rotable and could be installed on numerous airplanes during its service life. Boeing also explained that a unit repaired in accordance with an approved AMOC will fulfill the intent of airplane safety when the unit is installed on an airplane, and that the unit will be in compliance with the AD as long as the part is serviceable as defined by the AD.
We agree with the commenter and have revised paragraph (l)(3) of this AD accordingly.
AA requested that we revise the NPRM (79 FR 11725, March 3, 2014; corrected March 11, 2014 (79 FR 13592)), to include language that allows the optional re-identification of the exhaust plug with the correct post-Boeing Special Attention Service Bulletin 777–78–0051, part number identity in accordance with a method approved by the operator's approved CAMP, as the CAMP provides an equivalent level of safety. AA explained that prior to the release of Boeing Special Attention Service Bulletin 777–78–0051, Revision 3, dated August 23, 2012, AA implemented a maintenance program to install data plates on the forward and aft exhaust plug. The plates were installed because the manufacturer part number and serial number, which were chemical-etched on the exhaust plug skin by the manufacturer, were no longer legible. AA stated that the data plates contain the original part number, a company-assigned serial number, and the text “MATCHED SET. DO NOT SEPARATE.” AA added that the installed identification plates are in the same location as, but a different length than, the plates specified in Boeing Special Attention Service Bulletin 777–78–0051, Revision 3, dated August 23, 2012.
We agree to allow alternative permanent part-marking methods. If the markings contain the required information and are permanent, the intent of the marking requirement is addressed, and additional flexibility is provided to operators. Therefore, part-marking methods for the CAMP might be approved, provided that the markings are permanent and contain the information specified in Boeing Special Attention Service Bulletin 777–78–0051, Revision 4, dated February 7, 2014. We have added this information to paragraph (g) of this AD accordingly.
AA requested that we revise paragraph (h) of the proposed AD, to allow repairs accomplished prior to the release of this AD, in accordance with Boeing instructions and approved per 14 CFR part 121.379, or a Boeing ODA, to be included as acceptable repairs in this AD, without the requirement to obtain a Boeing ODA AMOC or Seattle Aircraft Certification Office AMOC approval.
AA explained that, prior to release of the NPRM (79 FR 11725, March 3, 2014; corrected March 11, 2014 (79 FR 13592)); exhaust aft plugs have received repairs at the exhaust aft plug mate line during inspection or during incorporation of Boeing Special Attention Service Bulletin 777–78–0051, Revision 3, dated August 23, 2012, utilizing procedures provided by Boeing without Boeing ODA approval; rather, the repair was approved per 14 CFR part 121.379. AA expressed that paragraph (h) of the proposed AD specifies using a repair method approved in accordance with the procedures specified in paragraph (k) of the proposed AD, and these previously accomplished repairs, which followed Boeing repair instructions, offer an equivalent level of safety to the NPRM.
We partially agree with the request. We agree to add paragraph (l)(4) in this AD to eliminate the requirement for subsequent AMOC approval for repairs that were previously approved by the Boeing ODA, using an FAA Form 8100–9, and having met the requirements of paragraph (h) of this AD, for the definition of serviceable turbine exhaust plug assemblies. We are confident that the Boeing ODA repair approval process ensures that each repair is reviewed by qualified engineering staff with knowledge of the original airplane design and compliance substantiation. At the same time, we want to ensure that those repairs would have a configuration that meets the definition of serviceable turbine exhaust plug assemblies as defined in the service information. We have added paragraph (l)(4) in this AD to state that repairs approved prior to the effective date of this AD, by the Boeing ODA using FAA Form 8100–9, and having met the requirements of paragraph (h) of this AD for the definition of serviceable turbine exhaust plug assemblies, do not require AMOC approval.
We disagree, however, to eliminate the AMOC approval requirement for repairs approved by other means. Even though Boeing Service Engineering may have provided a “no technical objection” statement, qualified engineering staff with knowledge of the original airplane design and compliance substantiation may not have been involved in evaluating the repair. We have not changed this AD in this regard.
We have revised this AD to refer to Boeing Special Attention Service Bulletin 777–78–0051, Revision 4, dated February 7, 2014, as the appropriate source of service information for the required actions. Among other things, this service information adds Group 2 airplanes to paragraph 1.E., “Compliance;” includes a maintenance records check; adds a general visual inspection to determine the diameter of the bolt used at the forward and aft plug interface; and adds applicable corrective actions—all of which we have clarified in new paragraph (g)(4) of this AD. Paragraphs (g)(3) and (c) of the proposed AD already accounted for the Group 2
We have also added a new paragraph (k) to this AD to provide credit for certain actions, if those actions were performed before the effective date of this AD using Boeing Special Attention Service Bulletin 777–78–0051, Revision 3, dated August 23, 2012. We have redesignated the subsequent paragraphs of this AD accordingly.
We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD with the changes described previously and minor editorial changes. We have determined that these minor changes:
• Are consistent with the intent that was proposed in the NPRM (79 FR 11725, March 3, 2014; corrected March 11, 2014 (79 FR 13592)) for correcting the unsafe condition; and
• Do not add any additional burden upon the public than was already proposed in the NPRM (79 FR 11725, March 3, 2014; corrected March 11, 2014 (79 FR 13592)).
We also determined that these changes will not increase the economic burden on any operator or increase the scope of this AD.
We reviewed Boeing Special Attention Service Bulletin 777–78–0051, Revision 4, dated February 7, 2014. Among other things, this service information adds Group 2 airplanes to paragraph 1.E., “Compliance;” includes a maintenance records check; adds a general visual inspection to determine the diameter of the bolt used at the forward and aft plug interface; and adds applicable corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We estimate that this AD affects 35 airplanes of U.S. registry.
We estimate the following costs to comply with this AD:
We estimate the following costs to do any necessary replacement that would be required based on the results of the inspection. We have no way of determining the number of aircraft that might need this replacement:
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective November 6, 2015.
None.
This AD applies to The Boeing Company Model 777–200, –200LR, –300,–300ER, and 777F series airplanes; certificated in any category; equipped with Rolls-Royce Trent 800 series engines.
Air Transport Association (ATA) of America Code 78, Engine Exhaust.
This AD was prompted by reports of in-flight separation of the engine's aft plug from the forward plug, which are the two parts of the turbine exhaust plug assembly. We are issuing this AD to prevent separation of the aft plug from the forward plug of the turbine exhaust plug assembly, which could result in parts departing the airplane and hitting the empennage or hitting a person on the ground, and destabilizing the airplane during a critical flight phase; parts remaining on a runway could cause damage to another airplane.
Comply with this AD within the compliance times specified, unless already done.
At the applicable time specified in paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 777–78–0051, Revision 4, dated February 7, 2014, except as provided by paragraph (i) of this AD, do the applicable actions specified in paragraphs (g)(1), (g)(2), (g)(3), and (g)(4) of this AD, in accordance with the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777–78–0051, Revision 4, dated February 7, 2014. Alternative part marking methods are allowed for the requirements of this paragraph, if approved by the FAA principal maintenance inspector, provided that the markings are permanent and contain the information required by Boeing Special Attention Service Bulletin 777–78–0051, Revision 4, dated February 7, 2014.
(1) For airplanes identified as Group 1, Configuration 1, in Boeing Special Attention Service Bulletin 777–78–0051, Revision 4, dated February 7, 2014: Install a serviceable turbine exhaust plug assembly.
(2) For airplanes identified as Group 1, Configurations 2 and 3, in Boeing Special Attention Service Bulletin 777–78–0051, Revision 4, dated February 7, 2014: Do a general visual inspection to determine the diameter of the bolt used at the forward and aft plug interface, and before further flight, do all applicable corrective actions.
(3) For airplanes listed in paragraph (c) of this AD that are not listed in the “Effectivity” section of Boeing Special Attention Service Bulletin 777–78–0051, Revision 4, dated February 7, 2014: Do a general visual inspection to determine if a serviceable turbine exhaust plug assembly is installed. If a serviceable turbine exhaust plug assembly is not installed, before further flight, install a serviceable turbine exhaust plug assembly.
(4) For airplanes identified as Group 2, in Boeing Special Attention Service Bulletin 777–78–0051, Revision 4, dated February 7, 2014: Do a maintenance records check to determine affected turbine exhaust plug assemblies, and for affected assemblies, do a general visual inspection to determine the diameter of the bolt used at the forward and aft plug interface, and before further flight, do all applicable corrective actions.
For the purposes of this AD, an acceptable serviceable turbine exhaust plug assembly must meet the conditions specified in paragraph (h)(1) or (h)(2) of this AD.
(1) A new assembly with part number 314W5520–22.
(2) A serviceable assembly as defined in the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777–78–0051, Revision 4, dated February 7, 2014; except, for any assembly on which the actions specified in Part 2 or Part 3 of the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777–78–0051, Revision 4, dated February 7, 2014, are done, and Boeing Special Attention Service Bulletin 777–78–0051, Revision 4, dated February 7, 2014, specifies to contact Boeing for repair instructions, this AD requires repair before further flight, using a method approved in accordance with the procedures specified in paragraph (l)(1) of this AD.
Where paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 777–78–0051, Revision 4, dated February 7, 2014, specifies a compliance time “after the Revision 3 date of this service bulletin,” or “after the Revision 4 date of this service bulletin,” this AD requires compliance within the applicable time after the effective date of this AD.
As of the effective date of this AD, only a serviceable turbine exhaust plug assembly that meets the requirements of paragraph (h)(1) or (h)(2) of this AD may be installed or reinstalled on any airplane.
This paragraph provides credit for the actions specified in paragraph (g) of this AD, if those actions were performed before the effective date of this AD using Boeing Special Attention Service Bulletin 777–78–0051, Revision 3, dated August 23, 2012 (which is not incorporated by reference in this AD), provided that for Group 1, Configuration 2, airplanes, on which the condition defined in Table 2 of paragraph 1.E., “Compliance,” of Boeing Special Attention Service Bulletin 777–78–0051, Revision 3, dated August 23, 2012, was found (
(1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (m) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD. An AMOC approved as described in this paragraph for a specific serviceable nozzle assembly may be transferred with that nozzle assembly to another aircraft without an additional AMOC approval being required.
(4) Repairs approved prior to the effective date of this AD by the Boeing ODA do not require AMOC approval if those repairs were approved using FAA Form 8100–9 and those repairs meet the definition of a serviceable assembly contained in the Accomplishment Instructions of Boeing Special Attention Service Bulletin 777–78–0051, Revision 4, dated February 7, 2014.
(1) For more information about this AD, contact Kevin Nguyen, Aerospace Engineer, Propulsion Branch, ANM–140S, Seattle Aircraft Certification Office (ACO) FAA, 1601 Lind Avenue SW., Renton, WA 98057–3356; phone: 425–917–6501; fax: 425–917–6590; email:
(2) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (n)(3) and (n)(4) of this AD.
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Special Attention Service Bulletin 777–78–0051, Revision 4, dated February 7, 2014.
(ii) Reserved.
(3) For Boeing service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H–65, Seattle, WA 98124–2207; telephone
(4) You may view this service information at FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425–227–1221.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202–741–6030, or go to:
Commodity Futures Trading Commission.
Final rule.
The Commodity Futures Trading Commission (the “Commission”) is taking final action to revise its regulations by removing the part 36 regulations. Those regulations implemented provisions of the Commodity Exchange Act (“CEA”) that established exempt boards of trade and exempt commercial markets—two categories of derivatives-trading platforms that were eliminated from the CEA by the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”). This action also removes various cross-references in other Commission regulations implicating exempt boards of trade and exempt commercial markets.
This rulemaking is effective on October 2, 2015.
Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581; Dana R. Brown, Division of Market Oversight, telephone (202) 418–5093 and email
On July 21, 2010, President Obama signed the Dodd-Frank Act into law.
Under the CFMA's revisions to the CEA, ECMs could trade exempt commodities
Under CEA Section 5d, 7 U.S.C. 7a–3, EBOTs were facilities that traded commodities (other than securities or securities indexes) that had a nearly inexhaustible deliverable supply and either no cash market or a cash market so liquid that any contract traded on the commodity was highly unlikely to be susceptible to manipulation. EBOT transactions were limited to eligible contract participants
Section 723 of the Dodd-Frank Act repealed CEA Section 2(h)(3) as it then existed,
Subsequent to the Grandfather Relief Order, the Commission issued a series
The Grandfather Relief Order and various subsequent Commission orders have all expired, and entities that previously operated as ECMs or EBOTs are seeking registration to become either DCMs or SEFs to continue their operations. Accordingly, the Commission is removing all references to the Commission exemptive orders from Title 17 of the Code of Federal Regulations.
As discussed in section III.A. below, the Commission is publishing this final rule pursuant to the Administrative Procedure Act, 5 U.S.C. 553(b)(A), which provides that the requirements for notice and opportunity for public comment do not apply to “rules of agency organization, procedure, or practice . . . .”
The Commission is removing part 36 of its regulations in its entirety in order to reflect the Dodd-Frank Act's elimination of the two categories of exempt markets—ECMs and EBOTs—from the CEA.
The Commission is removing from parts 15, 18, 40, and 140 all references to the Grandfather Relief Orders added to the Commission's regulations by Adaptation of Regulations To Incorporate Swaps rulemaking,
1.
The Commission is removing from regulation 15.05 all references to contracts identified in part 36.
2.
The Commission is removing from regulation 18.05 all references to ECMs and EBOTs.
3.
The Commission is removing from regulation 40.8 all references to electronic trading facilities on which significant price discovery contracts are traded or executed.
4. Appendix D to Part 40—Submission Cover Sheet and Instructions.
The Commission is removing from Appendix D to part 40 the reference to electronic trading facilities with a significant price discovery contract.
5.
The Commission is removing from regulation 140.99 all references to ECMs and EBOTs.
The Administrative Procedure Act (“APA”)
The Regulatory Flexibility Act requires the Commission to consider whether the regulations it adopts will have a significant economic impact on a substantial number of small entities.
The Commission may not conduct or sponsor, and a respondent is not required to respond to, a collection of information contained in a rulemaking unless the information collection displays a currently valid control number issued by the Office of Management and Budget (“OMB”) pursuant to the Paperwork Reduction Act.
Section 15(a) of the CEA requires the Commission to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders.
The Commission is removing its Part 36 regulations and amending §§ 15.05, 18.05, 40.8, Appendix D to part 40, and § 140.00. Part 36 originally implemented provisions of the pre-Dodd-Frank CEA that established EBOTs and ECMs—two categories of derivatives-trading platforms that were eliminated from the CEA by the Dodd-Frank Act—while the other regulations contained references to ECM and EBOTs. The Commission is using the CEA, as amended by the Dodd-Frank Act, as the baseline for assessing whether and to what extent costs or benefits are likely to flow from the amendments, and is only considering the costs and benefits of its discretionary actions permissible within the parameters of the statute.
Since the Dodd-Frank Act eliminated ECMs and EBOTs from the CEA, the Commission lacks authority to make or retain provisions for them within its regulations. Accordingly, there are no costs to the industry or the public associated with the amendments to remove implementing language for ECMs and EBOTs in part 36 and obsolete, vestigial references to ECMs and EBOTs in parts 15, 18, 40, and 140.
The Commission believes that market participants and the public will benefit from these ministerial rule amendments since they eliminate obsolete, vestigial provisions and references that otherwise could be construed to give rise to confusing inconsistencies between the Commission's regulations and the provisions of the CEA, as amended by the Dodd-Frank Act.
Brokers, Reporting and recordkeeping requirements.
Reporting and recordkeeping requirements.
Commodity futures.
Commodity futures, Reporting and recordkeeping requirements.
Authority delegations (government agencies), Conflicts of interest, Organization and functions (government agencies).
For the reasons stated in the preamble, under the authority of Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Public Law 111–203, 124 Stat. 1376 (2010), the Commodity Futures Trading Commission amends 17 CFR chapter I as set forth below:
7 U.S.C. 2, 5, 6a, 6c, 6f, 6g, 6i, 6k, 6m, 6n, 7, 7a, 9, 12a, 19, and 21, as amended by Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111–203, 124 Stat. 1376 (2010).
(a) For purposes of this section, the term “futures contract” means any contract for the purchase or sale of any commodity for future delivery, traded or executed on or subject to the rules of any designated contract market, or for the purposes of paragraph (i) of this section, a reporting market (including all agreements, contracts and transactions that are treated by a clearing organization as fungible with such contracts); the term “option contract” means any contract for the purchase or sale of a commodity option, or as applicable, any other instrument subject to the Act, traded or executed on or subject to the rules of any designated contract market, or for the purposes of paragraph (i) of this section, a reporting market (including all agreements, contracts and transactions that are treated by a clearing organization as fungible with such contracts); the term “customer” means any person for whose benefit a foreign broker makes or causes to be made any futures contract or option contract; and the term “communication” means any summons, complaint, order, subpoena, special call, request for information, or notice, as well as any other written document or correspondence.
7 U.S.C. 2, 4, 5, 6a, 6c, 6f, 6g, 6i, 6k, 6m, 6n, 6t, 12a, and 19, as amended by Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111–203, 124 Stat. 1376 (2010).
7 U.S.C. 1a, 2, 5, 6, 7, 7a and 12, as amended by Titles VII and VIII of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111–203, 124 Stat. 1376 (2010).
(a) A properly completed submission cover sheet shall accompany all rule and product submissions submitted electronically by a registered entity in a format and manner specified by the Secretary of the Commission to the Secretary of the Commission. A properly completed submission cover sheet shall include all of the following:
1.
2.
3.
4.
5.
6.
7.
(b)
(c) Checking the box marked “confidential treatment requested” on the Submission Cover Sheet does not obviate the submitter's responsibility to comply with all applicable requirements for requesting confidential treatment in § 40.8 and, where appropriate, § 145.9 of this chapter, and will not substitute for notice or full compliance with such requirements.
7 U.S.C. 2(a)(12), 12a, 13(c), 13(d), 13(e), and 16(b).
(d) * * *
(2)(i) A request for a Letter relating to the provisions of the Act or the Commission's rules, regulations or orders governing designated contract markets, registered swap execution facilities, registered swap data repositories, registered foreign boards of trade, the nature of particular transactions and whether they are exempt or excluded from being required to be traded on one of the foregoing entities, made available for trading determinations, position limits, hedging exemptions, position aggregation treatment or the reporting of market positions shall be filed with the Director, Division of Market Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581.
The following appendix will not appear in the Code of Federal Regulations.
On this matter, Chairman Massad and Commissioners Bowen and Giancarlo voted in the affirmative. No Commissioner voted in the negative.
Securities and Exchange Commission.
Final rule.
The Securities and Exchange Commission (the Commission) is adopting revisions to the Electronic Data Gathering, Analysis, and Retrieval System (EDGAR) Filer Manual and related rules to reflect updates to the EDGAR system. The updates are being made to add two new Security-based Swap Data Repository (SDR) submission form types; make available new exhibit EX–36 (Depositor Certification for shelf offerings of asset-backed securities) on EDGARLink Online for submission form types SF–3, SF–3/A, 8–K, and 8–K/A; accept Exhibit K and Exhibit L in eXtensible Business Reporting Language (XBRL) format for submission form types SDR, SDR/A, SDR–A, and SDR–W; consider valid XBRL file attachments if they contain multiple identically tagged XBRL facts; make documentation updates to Chapter 2 of the “EDGAR Filer Manual, Volume I: General Information” and Chapters 2, 3, and 7 of the “EDGAR Filer Manual, Volume II: EDGAR Filing” relating to Form NRSRO; and make formatting changes to “EDGAR Filer Manual, Volume I: General Information”, “EDGAR Filer Manual, Volume II: EDGAR Filing”, and “EDGAR Filer Manual, Volume III: N–SAR Supplement” for compliance with Section 508 of the U.S. Rehabilitation Act. The Filer Manual is also being revised to address software changes made previously in EDGAR. On July 10, 2015, Regulation A submission form types DOS, DOS/A, 1–A, 1–A/A, and 1–A POS were updated to prevent a filer from entering a response in Item 6(d) when the “None” option has been selected on Item 6. The EDGAR system is scheduled to be upgraded to support this functionality on September 14, 2015.
Effective October 2, 2015. The incorporation by reference of the EDGAR Filer Manual is approved by the Director of the Federal Register as of October 2, 2015.
In the Division of Trading and Markets, for
We are adopting an updated EDGAR Filer Manual, Volume I, Volume II, and Volume III. The Filer Manual describes the technical formatting requirements for the preparation and submission of electronic filings through the EDGAR system.
The revisions to the Filer Manual reflect changes within Volume I entitled EDGAR Filer Manual, Volume I: “General Information,” Version 23 (September 2015), Volume II entitled EDGAR Filer Manual, Volume II: “EDGAR Filing,” Version 34 (September 2015), and Volume III entitled EDGAR Filer Manual, Volume III: “N–SAR Supplement,” Version 5 (September 2015). The updated manual will be incorporated by reference into the Code of Federal Regulations.
The Filer Manual contains all the technical specifications for filers to submit filings using the EDGAR system. Filers must comply with the applicable provisions of the Filer Manual in order to assure the timely acceptance and processing of filings made in electronic format.
The EDGAR system will be upgraded to Release 15.3 on September 14, 2015 and will introduce the following changes:
As part of the final rules adopted on January 14, 2015 for regulating security-based swap data repositories (SDR), the following submission form types will be added to EDGAR:
These submission form types can be accessed by selecting the `EDGARLink Online Form Submission' link on the EDGAR Filing Web site. Additionally, applicants may construct XML submissions for SDR–CCO and SDR–CCO/A by following the “EDGARLink Online XML Technical Specification” document available on the SEC's Public Web site (
Submission form types SDR–CCO and SDR–CCO/A will include the “Request Confidentiality” check box to allow applicants to request confidential treatment for each attached document. After an SDR–CCO or SDR–CCO/A filing is submitted, SEC staff will review the submission and make a determination of whether the information for which confidential treatment is requested should be made public. EDGAR will only disseminate the attached documents of the submission that the SEC staff has determined to be public.
In connection with the Commission's revised rules and forms for disclosure by asset-backed securities issuers, new exhibit EX–36 (Depositor Certification for shelf offerings of asset-backed securities) will be available on EDGARLink Online for submission form types SF–3, SF–3/A, 8–K, and 8–K/A.
EDGAR will be updated to include the following XBRL document types for submission form types SDR, SDR/A, SDR–A, and SDR–W:
Filers will now be able to submit SDR Exhibit K and Exhibit L in XBRL format for submission form types SDR, SDR/A, SDR–A, and SDR–W. Filers can continue to provide SDR Exhibit K and Exhibit L in ASCII or HTML formats for submission form types SDR, SDR/A, SDR–A, and SDR–W.
XBRL file attachments will be considered valid if they contain multiple identically tagged XBRL facts.
Documentation updates were made to Chapter 2 of the “EDGAR Filer Manual, Volume I: General Information” and Chapters 2, 3, and 7 of the “EDGAR Filer Manual, Volume II: EDGAR Filing” relating to Form NRSRO.
Formatting changes were made to “EDGAR Filer Manual, Volume I: General Information”, “EDGAR Filer Manual, Volume II: EDGAR Filing”, and “EDGAR Filer Manual, Volume III: N–SAR Supplement” for compliance with Section 508 of the U.S. Rehabilitation Act.
The Filer Manual is also being revised to address software changes made previously in EDGAR. On July 10, 2015, EDGAR Release 15.2.e.4 introduced the following change:
Along with the adoption of the Filer Manual, we are amending Rule 301 of Regulation S–T to provide for the incorporation by reference into the Code of Federal Regulations of today's revisions. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
The updated EDGAR Filer Manual will be available for Web site viewing and printing; the address for the Filer Manual is
Since the Filer Manual and the corresponding rule changes relate solely to agency procedures or practice, publication for notice and comment is not required under the Administrative Procedure Act (APA).
The effective date for the updated Filer Manual and the rule amendments is October 2, 2015. In accordance with the APA,
We are adopting the amendments to Regulation S–T under Sections 6, 7, 8, 10, and 19(a) of the Securities Act of 1933,
Incorporation by reference, Reporting and recordkeeping requirements, Securities.
In accordance with the foregoing, Title 17, Chapter II of the Code of Federal Regulations is amended as follows:
15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s(a), 77z–3, 77sss(a), 78c(b), 78
Filers must prepare electronic filings in the manner prescribed by the EDGAR Filer Manual, promulgated by the Commission, which sets out the technical formatting requirements for electronic submissions. The requirements for becoming an EDGAR Filer and updating company data are set forth in the updated EDGAR Filer Manual, Volume I: “General Information,” Version 23 (September 2015). The requirements for filing on EDGAR are set forth in the updated EDGAR Filer Manual, Volume II: “EDGAR Filing,” Version 34 (September 2015). Additional provisions applicable to Form N–SAR filers are set forth in the EDGAR Filer Manual, Volume III: “N–SAR Supplement,” Version 5 (September 2015). All of these provisions have been incorporated by reference into the Code of Federal Regulations, which action was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You must comply with these requirements in order for documents to be timely received and accepted. The EDGAR Filer Manual is available for Web site viewing and printing; the address for the Filer Manual is
By the Commission.
Bureau of Alcohol, Tobacco, Firearms, and Explosives, Department of Justice.
Final rule; Correcting amendments.
The Department of Justice published in the
This rule is effective October 2, 2015.
Shermaine Kenner, Office of Regulatory Affairs, Enforcement Programs and Services, Bureau of Alcohol, Tobacco, Firearms, and Explosives, U.S. Department of Justice, 99 New York Avenue NE., Washington, DC 20226; telephone: (202) 648–7070 (this is not a toll-free number).
The Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF) administers regulations published in title 27, chapter II, Code of Federal Regulations (CFR). On August 11, 2014, the Department of Justice (DOJ) published in the
The 2014 technical amendments inadvertently contained an incorrect definition for “Customs officer” in 27 CFR part 555. This final rule corrects the changes in the Code of Federal Regulations made by the 2014 technical amendments by revising the definition. Section 555.11, defining “Customs officer,” is being amended so that it no longer contains a reference to “Customs Service.” The new definition reads as follows: “Any officer of U.S. Customs and Border Protection, any commissioned, warrant, or petty officer of the Coast Guard, or any agent or other person authorized by law to perform the duties of a customs officer.”
This final rule has been drafted and reviewed in accordance with Executive Order 12866, “Regulatory Planning and Review,” section 1(b), The Principles of Regulation, and Executive Order 13563, “Improving Regulation and Regulatory Review,” section 1, General Principles of Regulation. This rule is limited to agency organization, management, or personnel matters as described by Executive Order 12866, section 3(d)(3) and, therefore, is not a “regulation” or “rule” as defined by that Executive Order.
This final rule will not have substantial direct effects on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, “Federalism,” the Attorney General has determined that this regulation does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988, “Civil Justice Reform.”
This final rule is purely a matter of agency management. Accordingly, this rule is exempt from the usual requirements of prior notice and comment and a 30-day delay in the effective date.
The Attorney General, in accordance with the Regulatory Flexibility Act, 5 U.S.C. 605(b), has reviewed this rule and, by approving it, certifies that it will not have a significant economic impact on a substantial number of small entities because it pertains to personnel and administrative matters affecting the Department. Further, a Regulatory Flexibility Analysis is not required for this final rule because the Department was not required to publish a general notice of proposed rulemaking for this matter.
This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100 million 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 enterprises to compete with foreign-based enterprises in domestic and export markets.
This rule was not preceded by a published notice of proposed rulemaking; will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year; will not significantly or uniquely affect small governments; and does not contain significant intergovernmental mandates. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1531–1535.
This final rule does not impose any new reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C. 3501–3521.
This action pertains to agency organization, procedure, or practice, and does not substantially affect the rights or obligations of non-agency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996).
Administrative practice and procedure, Customs duties and inspection, Explosives, Hazardous substances, Imports, Penalties, Reporting and recordkeeping requirements, Safety, Security measures, Seizures and forfeitures, Transportation, and Warehouses.
Accordingly, for the reasons discussed in the preamble, 27 CFR part 555 is amended as follows:
18 U.S.C. 847.
Office of the DoD Chief Information Officer, DoD.
Interim final rule.
DoD is revising its DoD–DIB Cybersecurity (CS) Activities regulation to mandate reporting of cyber incidents that result in an actual or potentially adverse effect on a covered contractor information system or covered defense information residing therein, or on a contractor's ability to provide operationally critical support, and modify eligibility criteria to permit greater participation in the voluntary
Effective Date: This rule if effective October 2, 2015. Comments must be received by December 1, 2015.
You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) number and title, by any of the following methods:
• Federal Rulemaking Portal:
• Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate of Oversight and Compliance, Regulatory and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-9010.
DoD–DIB Cybersecurity Activities Office: (703) 604–3167, toll free (855) 363–4227.
This rule revises the DoD–DIB cybersecurity information sharing program regulation to implement new statutory requirements for DoD contractors and subcontractors to report cyber incidents that result in an actual or potentially adverse effect on a covered contractor information system or covered defense information residing therein, or on a contractor's ability to provide operationally critical support. The program also retains the voluntary information sharing activities for cybersecurity information that is outside the scope of the mandatory reporting requirements.
Regarding the mandatory reporting, this part has been revised to set forth mandatory cyber incident reporting requirements that will apply to all forms of contracts or other agreements between DoD and DIB companies (
The rule also revises the program's definitions to better harmonize with definitions that are already established and used by DoD and other Government agencies in similar contexts, such as those relating to the handling and safeguarding of Controlled Unclassified Information as used by the National Archives and Records Administration pursuant to Executive Order 13556 “Controlled Unclassified Information” (November 4, 2010) (see
This rule is intended to streamline the reporting process for DoD contractors and minimize duplicative reporting processes, while preserving distinctions where appropriate. Cyber incident reporting involving classified information on classified contractor systems will be in accordance with the National Industrial Security Program Operating Manual (DoD–M 5220.22 (
This rule also modifies eligibility criteria to permit greater participation in the voluntary DoD–DIB CS information sharing program. Expanding participation in the DoD–DIB CS information sharing program is part of DoD's comprehensive approach to counter cyber threats through information sharing between the Government and DIB participants. The DoD–DIB CS information sharing program allows eligible DIB participants to receive Government furnished information (GFI) and cyber threat information from other DIB participants, thereby providing greater insights into adversarial activity targeting the DIB. The activities in this rule implement DoD statutory authorities to establish programs and activities to protect sensitive DoD information, including when such information resides on or transits information systems operated by contractors or others in support of DoD activities (
Under this rule, contractors will incur costs associated with requirements for reporting cyber incidents of covered defense information on their covered contractor information system(s) or those affecting the contractor's ability to provide operationally critical support. Costs for contractors include identifying and analyzing cyber incidents and their impact on covered defense information, or a contractor's ability to provide operationally critical support, as well as obtaining DoD-approved medium assurance certificates to ensure authentication and identification when reporting cyber incidents to DoD. Government costs include onboarding new companies under the voluntary DoD–DIB CS information sharing program, and collecting and analyzing cyber incident reports, malicious software, and media.
A foundational element of these new mandatory reporting requirements, as well as the voluntary DoD–DIB CS information sharing activities, is the recognition that the information being shared between the parties includes extremely sensitive information that requires protection. For additional information regarding the Government's safeguarding of information received from the contractors that require protection, see the Privacy Impact Assessment (PIA) for the DIB Cybersecurity/Information Assurance Activities located at
This rule is being published as an interim rule in order to comply with statutory guidance under Section 941 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013, and section 391 of Title 10, United States Code (U.S.C.), requiring defense contractors to rapidly report cyber incidents on their unclassified networks or information systems that may affect unclassified defense information, or that affect their ability to provide operationally critical support to the Department. Issuing this rule as an interim final rule underscores the importance of better protecting unclassified defense information against the immediate cyber threat, while preserving the intellectual property and competitive capabilities of our national defense industrial base. The interim final rule enables DoD to better assess, in the near term, when mission critical capabilities and services are affected by cyber incidents and reinforces DoD's overall efforts to defend DoD information, protect U.S. national interests against cyber-attacks, and support military operations and contingency plans worldwide. Cybersecurity is a Congressional priority and this interim final rule supports the Administration's national cybersecurity strategy emphasizing public-private information sharing.
Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distribute impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget (OMB).
It has been determined that this rule is not a “major” rule under 5 U.S.C. 801, enacted by Public Law 104–121, because it will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices for consumers, individual industries, Federal, State, or local Government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.
It has been determined that this rule does not contain a Federal mandate that may result in expenditure by State, local and tribal Governments, in aggregate, or by the private sector, of $100 million or more in any one year.
It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. Therefore, the Regulatory Flexibility Act, as amended, does not require us to prepare a regulatory flexibility analysis.
It has been determined that 32 CFR part 236 does contain reporting or recordkeeping requirements under the Paper Reduction Act (PRA) of 1995. These reporting requirements apply existing collection approvals under Office of Management and Budget (OMB) Control Numbers: 0704–0489, “Defense Industrial Base Cyber Security/Information Assurance (DIB CS/IA) Cyber Incident Reporting,” and 0704–0490, “Defense Industrial Base Cyber Security/Information Assurance (DIB CS/IA) Points of Contact (POC) Information.”
DoD has submitted a revision for the 0704–0489 collection to OMB under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35) in response to 32 CFR part 236 expanding the number of companies under mandatory cyber incident reporting requirements. Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility; (b) the accuracy of the estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology.
Number of DoD contractors impacted is 10,000.
DoD has submitted a revision for the 0704–0490 collection to OMB under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35) in response to 32 CFR part 236 expanding the number of companies eligible to participate in the voluntary DIB CS information sharing program. Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility; (b) the accuracy of the estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology.
Number of DoD contractors impacted is 8,500. DoD estimates that no more than 10% of the total eligible population of cleared defense contractors will apply to the voluntary DIB Cybersecurity Activities program resulting in 850 cleared defense contractors impacted annually. An additional 10% of the population or 85 contractors may provide updated points of contact for the program, as required.
Projected Responses Per Participant: Initial collection is one per company with updates on a case-by-case basis.
Written comments and recommendations on these information collections should be sent to Ms. Jasmeet Seehra at the Office of Management and Budget, DoD Desk Officer, Room 10102, New Executive Office Building, Washington, DC 20503, with a copy to the Director, DoD–DIB Cybersecurity Activities Office, at the Office of the DoD Chief Information Officer, 6000 Defense Pentagon, Attn: DIB CS Activities Office, Washington, DC 20301–6000, or email at
You may also submit comments, identified by docket number and title, by the following method:
All submissions received must include the agency name, docket number and title for this
It has been determined that this rule does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:
(a) The States;
(b) The relationship between the National Government and the States; or
(c) The distribution of power and responsibilities among the various levels of Government.
Government contracts, Security measures.
Accordingly, 32 CFR part 236 is revised to read as follows:
10 U.S.C. 391; 10 U.S.C. 2224; 44 U.S.C. 3506; 44 U.S.C. 3544; and Section 941, Publ. L. 112–239, 126 Stat. 1632.
Cyber threats to contractor unclassified information systems represent an unacceptable risk of compromise of DoD information and pose an imminent threat to U.S. national security and economic security interests. This part requires all DoD contractors to rapidly report cyber incidents involving covered defense information on their covered contractor information systems or cyber incidents affecting the contractor's ability to provide operationally critical support. The part also modifies the eligibility criteria to permit greater participation in the voluntary DoD–DIB CS information sharing program in which DoD provides cyber threat information and cybersecurity best practices to DIB participants. The DoD–DIB CS information sharing program enhances and supplements DIB participants' capabilities to safeguard DoD information that resides on, or transits, DIB unclassified information systems.
As used in this part:
(1) Is:
(i) Provided to the contractor by or on behalf of the DoD in connection with the performance of a contract; or
(ii) Collected, developed, received, transmitted, used, or stored by or on behalf of the contractor in support of the performance of a contract; and
(2) Falls in any of the following categories:
(i) Controlled Technical Information;
(ii) Critical information (operations security). Specific facts identified through the Operations Security process about friendly intentions, capabilities, and activities vitally needed by adversaries for them to plan and act effectively so as to guarantee failure or unacceptable consequences for friendly mission accomplishment (part of Operations Security process);
(iii) Export Control. Unclassified information concerning certain items, commodities, technology, software, or other information whose export could reasonably be expected to adversely affect the United States national security and nonproliferation objectives. To include dual use items; items identified in export administration regulations, international traffic in arms regulations and munitions list; license applications; and sensitive nuclear technology information;
(iv) Any other information, marked or otherwise identified by the Government, that requires safeguarding or dissemination controls pursuant to and consistent with law, regulations, and Government-wide policies (
It is DoD policy to:
(a) Establish a comprehensive approach to require safeguarding of covered defense information on covered contractor information systems and to require contractor cyber incident reporting.
(b) Increase Government stakeholder and DIB situational awareness of the extent and severity of cyber threats to DoD information by implementing a streamlined approval process that enables the contractor to elect, in conjunction with the cyber incident reporting and sharing, the extent to which DoD may share cyber threat information obtained from a contractor (or derived from information obtained from the company) under this part that is not information created by or for DoD with:
(1) DIB contractors participating in the DoD–DIB CS information sharing program to enhance their cybersecurity posture to better protect covered defense information on covered contractor information systems, or a contractor's ability to provide operationally critical support; and
(2) Other Government stakeholders for lawful Government activities, including cybersecurity for the protection of Government information or information systems, law enforcement and counterintelligence (LE/CI), and other lawful national security activities directed against the cyber threat (
(c) Modify eligibility criteria to permit greater participation in the voluntary DoD–DIB CS information sharing program.
(a)
(b)
(1) Conduct a review for evidence of compromise of covered defense information including, but not limited to, identifying compromised computers, servers, specific data, and user accounts. This review shall also include analyzing covered contractor information system(s) that were part of the cyber incident, as well as other information systems on the contractor's network(s), that may have been accessed as a result of the incident in order to identify compromised covered defense information, or that affect the contractor's ability to provide operationally critical support; and
(2) Rapidly report cyber incidents to DoD at
(c)
(d)
(e)
(f) If the contractor utilizes a third-party service provider (SP) for information system security services, the SP may report cyber incidents on behalf of the contractor.
(g) Contractors are encouraged to report information to promote sharing of cyber threat indicators that they believe are valuable in alerting the Government and others, as appropriate in order to better counter threat actor activity. Cyber incidents that are not compromises of covered defense information or do not adversely affect the contractor's ability to perform operationally critical support may be of interest to the DIB and DoD for situational awareness purposes.
(h)
(i)
(j)
(k)
(l)
(m)
(1) To entities with missions that may be affected by such information;
(2) To entities that may be called upon to assist in the diagnosis, detection, or mitigation of cyber incidents;
(3) To Government entities that conduct LE/CI investigations;
(4) For national security purposes, including cyber situational awareness and defense purposes (including sharing with DIB contractors participating in the DIB CS program authorized by this part); or
(5) To a support services contractor (“recipient”) that is directly supporting Government activities related to this part and is bound by use and non-disclosure restrictions that include all of the following conditions:
(i) The recipient shall access and use the information only for the purpose of furnishing advice or technical assistance directly to the Government in support of the Government's activities related to this part, and shall not be used for any other purpose;
(ii) The recipient shall protect the information against unauthorized release or disclosure;
(iii) The recipient shall ensure that its employees are subject to use and non-disclosure obligations consistent with this part prior to the employees being provided access to or use of the information;
(iv) The third-party contractor that reported the cyber incident is a third-party beneficiary of the non-disclosure agreement between the Government and the recipient, as required by paragraph (m)(5)(iii) of this section;
(v) That a breach of these obligations or restrictions may subject the recipient to:
(A) Criminal, civil, administrative, and contractual actions in law and equity for penalties, damages, and other appropriate remedies by the United States; and
(B) Civil actions for damages and other appropriate remedies by the third party that reported the incident, as a third party beneficiary of the non-disclosure agreement.
(6) Use and release of contractor attributional/proprietary information created by or for DoD. Information that
(n) Contractors shall conduct their respective activities under this part in accordance with applicable laws and regulations on the interception, monitoring, access, use, and disclosure of electronic communications and data.
(o)
(p)
(a) All contractors that are CDCs and meet the requirements set forth in § 236.7 are eligible to join the voluntary DoD–DIB CS information sharing program as a DIB participant.
(b) Under the voluntary activities of the DoD–DIB CS information sharing program, the Government and each DIB participant will execute a standardized agreement, referred to as a Framework Agreement (FA) to share, in a timely and secure manner, on a recurring basis, and to the greatest extent possible, cybersecurity information.
(c) Each such FA between the Government and a DIB participant must comply with and implement the requirements of this part, and will include additional terms and conditions as necessary to effectively implement the voluntary information sharing activities described in this part with individual DIB participants.
(d) The DoD–DIB CS Activities Office is the overall point of contact for the program. The DC3 managed DoD–DIB Collaborative Information Sharing Environment (DCISE) is the operational focal point for cyber threat information sharing and incident reporting under the DoD–DIB CS information sharing program.
(e) The Government will maintain a Web site or other internet-based capability to provide potential DIB participants with information about eligibility and participation in the program, to enable online application or registration for participation, and to support the execution of necessary agreements with the Government.
(f)
(g) Prior to receiving GFI from the Government, each DIB participant shall provide the requisite points of contact information, to include security clearance and citizenship information, for the designated personnel within their company (
(h) GFI will be issued via both unclassified and classified means. DIB participant handling and safeguarding of classified information shall be in compliance with DoD 5220.22–M, “National Industrial Security Program Operating Manual (NISPOM),” available at
(i) Except as authorized in this part or in writing by the Government, DIB participants may:
(1) Use GFI only on U.S. based covered contractor information systems, or U.S. based networks or information systems used to provide operationally critical support; and
(2) Share GFI only within their company or organization, on a need-to-know basis, with distribution restricted to U.S. citizens.
(j) In individual cases DIB participants may request, and the Government may authorize, disclosure and use of GFI under applicable terms and conditions when the DIB participant can demonstrate that appropriate information handling and protection mechanisms are in place and has determined that it requires the ability:
(1) To share the GFI with a non-U.S. citizen; or
(2) To use the GFI on a non-U.S. based covered contractor information system; or
(3) To use the GFI on a non-U.S. based network or information system in order to better protect a contractor's ability to provide operationally critical support.
(k) DIB participants shall maintain the capability to electronically disseminate GFI within the Company in an encrypted fashion (
(l) DIB participants shall not share GFI outside of their company or organization, regardless of personnel clearance level, except as authorized in this part or otherwise authorized in writing by the Government.
(m) If the DIB participant utilizes a SP for information system security services, the DIB participant may share GFI with that SP under the following conditions and as authorized in writing by the Government:
(1) The DIB participant must identify the SP to the Government and request permission to share or disclose any GFI with that SP (which may include a request that the Government share information directly with the SP on behalf of the DIB participant) solely for the authorized purposes of this program.
(2) The SP must provide the Government with sufficient information to enable the Government to determine whether the SP is eligible to receive such information, and possesses the capability to provide appropriate protections for the GFI.
(3) Upon approval by the Government, the SP must enter into a legally binding agreement with the DIB participant (and also an appropriate agreement with the Government in any case in which the SP will receive or share information directly with the Government on behalf of the DIB participant) under which the SP is subject to all applicable requirements of this part and of any supplemental terms and conditions in the DIB participant's FA with the Government, and which authorizes the SP to use the GFI only as authorized by the Government.
(n) The DIB participant may not sell, lease, license, or otherwise incorporate the GFI into its products or services, except that this does not prohibit a DIB participant from being appropriately designated an SP in accordance with paragraph (m) of this section.
(a) Confidentiality of information that is exchanged under the DoD–DIB CS information sharing program will be protected to the maximum extent authorized by law, regulation, and policy. DoD and DIB participants each bear responsibility for their own actions under the voluntary DoD–DIB CS information sharing program.
(b) All DIB CS participants may participate in the Department of Homeland Security's Enhanced Cybersecurity Services (ECS) program (
(c) Participation in the voluntary DoD–DIB CS information sharing program does not obligate the DIB participant to utilize the GFI in, or otherwise to implement any changes to, its information systems. Any action taken by the DIB participant based on the GFI or other participation in this program is taken on the DIB participant's own volition and at its own risk and expense.
(d) A DIB participant's participation in the voluntary DoD–DIB CS information sharing program is not intended to create any unfair competitive advantage or disadvantage in DoD source selections or competitions, or to provide any other form of unfair preferential treatment, and shall not in any way be represented or interpreted as a Government endorsement or approval of the DIB participant, its information systems, or its products or services.
(e) The DIB participant and the Government may each unilaterally limit or discontinue participation in the voluntary DoD–DIB CS information sharing program at any time. Termination shall not relieve the DIB participant or the Government from obligations to continue to protect against the unauthorized use or disclosure of GFI, attribution information, contractor proprietary information, third-party proprietary information, or any other information exchanged under this program, as required by law, regulation, contract, or the FA.
(f) Upon termination of the FA, and/or change of Facility Security Clearance (FCL) status below Secret, GFI must be returned to the Government or destroyed pursuant to direction of, and at the discretion of, the Government.
(g) Participation in these activities does not abrogate the Government's, or the DIB participants' rights or obligations regarding the handling, safeguarding, sharing, or reporting of information, or regarding any physical, personnel, or other security requirements, as required by law, regulation, policy, or a valid legal contractual obligation. However, participation in the voluntary activities of the DoD–DIB CS information sharing program does not eliminate the requirement for DIB participants to report cyber incidents in accordance with § 236.4.
(a) To participate in the DoD–DIB CS information sharing program, a contractor must be a CDC and shall:
(1) Have an existing active FCL granted under the NISPOM (DoD 5220.22–M); and
(2) Execute the standardized FA with the Government (available during the application process), which implements the requirements set forth in §§ 236.5 through 236.7, and allows the CDC to select their level of participation in the voluntary DoD–DIB CS information sharing program.
(3) In order for participating CDCs to receive classified cyber threat information electronically, they must:
(i) Have or acquire a Communication Security (COMSEC) account in accordance with the NISPOM Chapter 9, Section 4 (DoD 5220.22–M), which provides procedures and requirements for COMSEC activities; and
(ii) Have or acquire approved safeguarding for at least Secret information, and continue to qualify under the NISPOM for retention of its FCL and approved safeguarding; and
(iii) Obtain access to DoD's secure voice and data transmission systems supporting the voluntary DoD–DIB CS information sharing program.
(b) [Reserved]
Copyright Royalty Board, Library of Congress.
Final rule.
The Copyright Royalty Judges publish final regulations that set the rates and terms for the digital performances of sound recordings by certain public radio stations and for the making of ephemeral recordings necessary to facilitate those transmissions for the period commencing January 1, 2016, and ending on December 31, 2020.
LaKeshia Keys, Program Specialist, by telephone at (202) 707–7658, or by email at
The Copyright Royalty Judges (“Judges”) received a joint motion from SoundExchange, Inc. (“SoundExchange”), National Public Radio, Inc. (“NPR”) and the Corporation for Public Broadcasting (“CPB”) in which they announced a partial settlement in the above proceeding (“Settlement”) regarding royalty rates and terms for certain internet transmissions by NPR, American Public Media, Public Radio International, and certain public radio stations (“covered entities”). The parties to the agreement requested that the Judges adopt the Settlement as a determination of rates and terms under Sections 112(e) and 114 of the Copyright Act for eligible transmissions by covered entities through their Web sites and related ephemeral recordings, as more specifically set forth in the Settlement. The Judges published the proposed Settlement and requested comments from the public. 80 FR 15958 (March 26, 2015).
Section 801(b)(7)(A) of the Copyright Act authorizes the Judges to adopt rates and terms negotiated by “some or all of the participants in a proceeding at any time during the proceeding” provided the settling parties submit the negotiated rates and terms to the Judges for approval. That provision directs the Judges to provide those who would be bound by the negotiated rates and terms an opportunity to comment on the agreement. Unless a participant in a proceeding objects and the Judges conclude that the agreement does not provide a reasonable basis for setting statutory rates or terms, the Judges adopt the negotiated rates and terms. 17 U.S.C. 801(b)(7)(A).
The Judges “may decline to adopt the agreement as a basis for statutory terms and rates for participants that are not parties to the agreement,” only “if any participant [to the proceeding] objects to the agreement and the [Judges] conclude, based on the record before them if one exists, that the agreement does not provide a reasonable basis for setting statutory terms or rates.” 17 U.S.C. 801(b)(7)(A)(ii).
Section 801(b)(7)(A) limits the circumstances under which the Judges may decline to adopt aspects of an agreement; nevertheless it does not preclude the Judges from declining to adopt portions of an agreement that would be contrary to the provisions of the applicable license or otherwise contrary to statutory law.
By its terms, this partial Settlement applies to “covered entities,” which are defined as NPR, American Public Media, Public Radio International, Public Radio Exchange, and up to 530 originating public radio stations as named by CPB. Proposed Regulation 380.31. Notwithstanding the royalty rates and terms set forth in the partial Settlement, copyright owners and licensees are permitted, consistent with the partial Settlement, to adopt rates and terms that would apply in lieu of those established in the partial Settlement. Proposed Regulation 380.30(c). According to the Joint Motion, “[b]ecause the Settlement applies to only a closed group of licensees, and has a single payor (CPB), the Settlement is being submitted to the Judges for adoption as a statutory rate and terms [sic] only so that it will be binding on all copyright owners and performers, including those that are not members of SoundExchange.” Joint Motion at 3.
The Judges received one comment in response to their request for comments published in the
Notwithstanding IBS's objection, the Judges find that the partial Settlement provides a reasonable basis for setting statutory terms and rates and therefore they adopt the partial Settlement, with one exception, discussed below. The IBS position is clearly at odds with the language of Section 801(b)(7)(A), which authorizes adoption of settlements “at any time during the proceeding.” Further, the proposed Settlement pertains solely to public broadcasting entities, which are expressly excluded from the definition of “noncommercial educational webcasters” in existing regulations.
IBS's concern that some unnamed webcasters could be prejudiced by the adoption of the Settlement is speculative, unsupported by evidence, and does not, without more, challenge the validity of the Settlement in establishing a reasonable basis for setting statutory terms or rates. Without evidence to the contrary, the Judges find that the agreement reached voluntarily between the Settling Parties does in fact establish a reasonable basis for setting statutory terms and rates.
The Judges do not adopt at this time, however, the provision in proposed § 380.31, which states: “For the 2016–2020 license period, the collective is SoundExchange, Inc.” Designation of the Collective under the statutory license is within the Judges' purview and they will make that designation in the Judges' final determination in the proceeding.
Copyright, Digital audio transmissions, Performance right, Sound recordings.
For the reasons set forth in the preamble, the Copyright Royalty Judges amend 37 CFR part 380 as follows:
17 U.S.C. 112(e), 114(f), 804(b)(3).
(a)
(b)
(c)
For purposes of this subpart, the following definitions shall apply:
(1) Such Phonorecords are limited solely to those necessary to encode Sound Recordings in different formats and at different bit rates as necessary to facilitate Web site Performances covered by this subpart;
(2) Such Phonorecords are made in strict conformity with the provisions set forth in 17 U.S.C. 112(e)(1)(A)-(D); and
(3) The Covered Entities comply with 17 U.S.C. 112(a) and (e) and all of the terms and conditions of this Agreement.
(1) Is licensed as such by the Federal Communications Commission;
(2) Originates programming and is not solely a repeater station;
(3) Is a member or affiliate of NPR, American Public Media, Public Radio International, or Public Radio Exchange, a member of the National Federation of Community Broadcasters, or another public radio station that is qualified to receive funding from CPB pursuant to its criteria;
(4) Qualifies as a “noncommercial webcaster” under 17 U.S.C. 114(f)(5)(E)(i); and
(5) Either—
(i) Offers Web site Performances only as part of the mission that entitles it to be exempt from taxation under section 501 of the Internal Revenue Code of 1986 (26 U.S.C. 501); or
(ii) In the case of a governmental entity (including a Native American Tribal governmental entity), is operated exclusively for public purposes.
(a)
(b)
(1) An annual minimum fee of $500 for each Covered Entity for each year during the Term;
(2) Additional usage fees for certain Covered Entities; and
(3) A discount that reflects the administrative convenience to the Collective of receiving annual lump sum payments that cover a large number of separate entities, as well as the protection from bad debt that arises from being paid in advance.
(c)
(d)
(e)
(f)
(1) Obligate such third Person to provide all such services in accordance with all applicable provisions of the statutory licenses and this subpart;
(2) Specify that such third Person shall have no right to make Web site Performances or any other performances or Phonorecords on its own behalf or on behalf of any Person or entity other than a Covered Entity through the Covered Entity's Authorized Web site by virtue of its services for the Covered Entity, including in the case of Phonorecords, pre-encoding or otherwise establishing a library of Sound Recordings that it offers to a Covered Entity or others for purposes of making performances, but instead must obtain all necessary licenses from the Collective, the copyright owner or another duly authorized Person, as the case may be;
(3) Specify that such third Person shall have no right to grant any sublicenses under the statutory licenses; and
(4) Provide that the Collective is an intended third-party beneficiary of all such obligations with the right to enforce a breach thereof against such third Person.
(a)
(b)
(2) If SoundExchange, Inc. should dissolve or cease to be governed by a board consisting of equal numbers of representatives of Copyright Owners and Performers, then it shall be replaced by a successor Collective upon the fulfillment of the requirements set forth in paragraph (b)(2)(i) of this section.
(i) By a majority vote of the nine Copyright Owner representatives and the nine Performer representatives on the SoundExchange board as of the last day preceding the condition precedent in this paragraph (b)(2), such representatives shall file a petition with the Copyright Royalty Judges
(ii) The Copyright Royalty Judges shall publish in the
(c)
(d)
(e)
(2) If the Collective is unable to locate a Copyright Owner or Performer entitled to a distribution of royalties under paragraph (e)(1) of the section within 3 years from the date of payment by a Licensee, such royalties shall be handled in accordance with § 380.37.
(f)
(a)
(b)
(c)
(d)
(1) Those employees, agents, attorneys, consultants and independent contractors of the Collective, subject to an appropriate confidentiality agreement, who are engaged in the collection and distribution of royalty payments hereunder and activities related thereto, for the purpose of performing such duties during the ordinary course of their work and who require access to the Confidential Information;
(2) An independent and Qualified Auditor, subject to an appropriate confidentiality agreement, who is authorized to act on behalf of the Collective with respect to verification of a Licensee's statement of account pursuant to § 380.35 or on behalf of a Copyright Owner or Performer with respect to the verification of royalty distributions pursuant to § 380.36;
(3) Copyright Owners and Performers, including their designated agents, whose works have been used under the statutory licenses set forth in 17 U.S.C. 112(e) and 114 by the Licensee whose Confidential Information is being supplied, subject to an appropriate confidentiality agreement, and including those employees, agents, attorneys, consultants and independent contractors of such Copyright Owners and Performers and their designated agents, subject to an appropriate confidentiality agreement, for the purpose of performing their duties during the ordinary course of their work and who require access to the Confidential Information; and
(4) In connection with future proceedings under 17 U.S.C. 112(e) and 114 before the Copyright Royalty Judges, and under an appropriate protective order, attorneys, consultants and other authorized agents of the parties to the proceedings or the courts, subject to the provisions of any relevant agreements restricting the activities of CPB, Covered Entities or the Collective in such proceedings.
(e)
(a)
(b)
(c)
(d)
(e)
(f)
(a)
(b)
(c)
(d)
(e)
(f)
If the Collective is unable to identify or locate a Copyright Owner or Performer who is entitled to receive a royalty distribution under this subpart, the Collective shall retain the required payment in a segregated trust account for a period of 3 years from the date of distribution. No claim to such distribution shall be valid after the expiration of the 3-year period. After expiration of this period, the Collective may apply the unclaimed funds to offset any costs deductible under 17 U.S.C. 114(g)(3). The foregoing shall apply notwithstanding the common law or statutes of any State.
Approved by:
Environmental Protection Agency (EPA).
Direct final rule.
EPA is promulgating significant new use rules (SNURs) under the Toxic Substances Control Act (TSCA) for 30 chemical substances which were the subject of premanufacture notices (PMNs). Nine of these chemical substances are subject to TSCA section 5(e) consent orders issued by EPA. This action requires persons who intend to manufacture (including import) or process any of these 30 chemical substances for an activity that is designated as a significant new use by this rule to notify EPA at least 90 days before commencing that activity. The required notification will provide EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit that activity before it occurs.
This rule is effective on December 1, 2015. For purposes of judicial review, this rule shall be promulgated at 1 p.m. (e.s.t.) on October 16, 2015.
Written adverse or critical comments, or notice of intent to submit adverse or critical comments, on one or more of these SNURs must be received on or before November 2, 2015 (see Unit VI. of the
For additional information on related reporting requirement dates, see Units I.A., VI., and VII. of the
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPPT–2015–0388, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
You may be potentially affected by this action if you manufacture, process, or use the chemical substances contained in this rule. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Manufacturers or processors of one or more subject chemical substances (NAICS codes 325 and 324110),
This action may also affect certain entities through pre-existing import certification and export notification rules under TSCA. Chemical importers are subject to the TSCA section 13 (15 U.S.C. 2612) import certification requirements promulgated at 19 CFR 12.118 through 12.127 and 19 CFR 127.28. Chemical importers must certify that the shipment of the chemical substance complies with all applicable rules and orders under TSCA. Importers of chemicals subject to these SNURs must certify their compliance with the SNUR requirements. The EPA policy in support of import certification appears at 40 CFR part 707, subpart B. In addition, any persons who export or intend to export a chemical substance that is the subject of a proposed or final rule are subject to the export notification provisions of TSCA section 12(b) (15 U.S.C. 2611(b)) (see § 721.20), and must comply with the export notification requirements in 40 CFR part 707, subpart D.
1.
2.
EPA is promulgating these SNURs using direct final procedures. These SNURs will require persons to notify EPA at least 90 days before commencing the manufacture, or processing of a chemical substance for any activity designated by these SNURs as a significant new use. Receipt of such notices allows EPA to assess risks that may be presented by the intended uses and, if appropriate, to regulate the proposed use before it occurs. Additional rationale and background to these rules are more fully set out in the preamble to EPA's first direct final SNUR published in the
Section 5(a)(2) of TSCA (15 U.S.C. 2604(a)(2)) authorizes EPA to determine that a use of a chemical substance is a “significant new use.” EPA must make this determination by rule after considering all relevant factors, including the four bulleted TSCA section 5(a)(2) factors listed in Unit III. Once EPA determines that a use of a chemical substance is a significant new use, TSCA section 5(a)(1)(B) requires persons to submit a significant new use notice (SNUN) to EPA at least 90 days before they manufacture or process the chemical substance for that use. Persons who must report are described in § 721.5.
General provisions for SNURs appear in 40 CFR part 721, subpart A. These provisions describe persons subject to the rule, recordkeeping requirements, exemptions to reporting requirements, and applicability of the rule to uses occurring before the effective date of the rule. Provisions relating to user fees appear at 40 CFR part 700. According to § 721.1(c), persons subject to these SNURs must comply with the same SNUN requirements and EPA regulatory procedures as submitters of PMNs under TSCA section 5(a)(1)(A). In particular, these requirements include the information submission requirements of TSCA sections 5(b) and 5(d)(1), the exemptions authorized by TSCA section 5(h)(1), (h)(2), (h)(3), and (h)(5), and the regulations at 40 CFR part 720. Once EPA receives a SNUN, EPA may take regulatory action under TSCA section 5(e), 5(f), 6, or 7 to control the activities for which it has received the SNUN. If EPA does not take action, EPA is required under TSCA section 5(g) to explain in the
Section 5(a)(2) of TSCA states that EPA's determination that a use of a chemical substance is a significant new use must be made after consideration of all relevant factors, including:
• The projected volume of manufacturing and processing of a chemical substance.
• The extent to which a use changes the type or form of exposure of human beings or the environment to a chemical substance.
• The extent to which a use increases the magnitude and duration of exposure of human beings or the environment to a chemical substance.
• The reasonably anticipated manner and methods of manufacturing, processing, distribution in commerce, and disposal of a chemical substance.
In addition to these factors enumerated in TSCA section 5(a)(2), the statute authorized EPA to consider any other relevant factors.
To determine what would constitute a significant new use for the 30 chemical substances that are the subject of these SNURs, EPA considered relevant information about the toxicity of the chemical substances, likely human exposures and environmental releases associated with possible uses, and the four bulleted TSCA section 5(a)(2) factors listed in this unit.
EPA is establishing significant new use and recordkeeping requirements for 30 chemical substances in 40 CFR part 721, subpart E. In this unit, EPA provides the following information for each chemical substance:
• PMN number.
• Chemical name (generic name, if the specific name is claimed as CBI).
• Chemical Abstracts Service (CAS) Registry number (assigned for non-confidential chemical identities).
• Basis for the TSCA section 5(e) consent order or the basis for the TSCA non-section 5(e) SNURs (
• Tests recommended by EPA to provide sufficient information to evaluate the chemical substance (see Unit VIII. for more information).
• CFR citation assigned in the regulatory text section of this rule.
The regulatory text section of this rule specifies the activities designated as significant new uses. Certain new uses, including production volume limits (
This rule includes 8 PMN substances that are subject to “risk-based” consent orders under TSCA section 5(e)(1)(A)(ii)(I) where EPA determined that activities associated with the PMN substances may present unreasonable risk to human health or the environment. Those consent orders require protective measures to limit exposures or otherwise mitigate the potential unreasonable risk. The so-called “TSCA section 5(e) SNURs” on these PMN substances are promulgated pursuant to § 721.160, and are based on and consistent with the provisions in the underlying consent orders. The TSCA section 5(e) SNURs designate as a “significant new use” the absence of the protective measures required in the corresponding consent orders.
In addition, this rule includes one SNUR on a PMN substance that is subject to an “exposure-based” consent order under TSCA section 5(e)(1)(A)(ii)(II), wherein EPA determined that the PMN substance is expected to be produced in substantial quantities, and that there may either be significant or substantial human exposure and/or the PMN substance may enter the environment in substantial quantities. The TSCA section 5(e) consent order requires submission of certain test data to EPA before the manufacturer may exceed a specified production volume. These SNURs designate as a “significant new use” the absence of the protective measures or exceedance of the production volume limit required in the TSCA section 5(e) consent order.
This rule also includes SNURs on 21 PMN substances that are not subject to consent orders under TSCA section 5(e). In these cases, for a variety of reasons, EPA did not find that the use scenario described in the PMN triggered the determinations set forth under TSCA section 5(e). However, EPA does believe that certain changes from the use scenario described in the PMN could result in increased exposures, thereby constituting a “significant new use.” These so-called “TSCA non-section 5(e) SNURs” are promulgated pursuant to § 721.170. EPA has determined that every activity designated as a “significant new use” in all TSCA non-section 5(e) SNURs issued under § 721.170 satisfies the two requirements stipulated in § 721.170(c)(2),
1. Risk notification. If as a result of the test data required, the company becomes aware that the PMN substance may present a risk of injury to human health or the environment, the company must incorporate this new information, and any information on methods for protecting against such risk into a Material Safety Data Sheet (MSDS), within 90 days.
2. Submission of certain physical/chemical property and environmental fate testing on a related PMN substance prior to exceeding the confidential production volume limits as specified in the consent order of the PMN substance.
3. Recording and reporting of certain fluorinated impurities in the starting raw material and the initially isolated intermediates; and manufacture of the PMN substance not to exceed the maximum established impurity levels of certain fluorinated impurities. The SNUR designates as a “significant new use” the absence of these protective measures.
1. Risk notification. If as a result of the test data required, the company becomes aware that the PMN substances may present a risk of injury to human health or the environment, the company must incorporate this new information, and any information on methods for protecting against such risk into a MSDS, within 90 days.
2. Submission of certain physical/chemical property and environmental fate testing on a related PMN substance prior to exceeding the confidential production volume limits as specified in the consent order of the PMN substances.
3. Recording and reporting of certain fluorinated impurities in the starting raw material and the initially isolated intermediates; and manufacture of the PMN substances not to exceed the maximum established impurity levels of certain fluorinated impurities. The SNUR designates as a “significant new use” the absence of these protective measures.
1. Risk notification. If as a result of the test data required, the company becomes aware that the PMN substances may present a risk of injury to human health or the environment, the company must incorporate this new information, and any information on methods for protecting against such risk into a MSDS, within 90 days.
2. Submission of certain physical/chemical property and environmental fate testing on a related PMN substance prior to exceeding the confidential production volume limits as specified in the consent order of the PMN substances.
3. Recording and reporting of certain fluorinated impurities in the starting raw material and the initially isolated intermediates; and manufacture of the PMN substances not to exceed the maximum established impurity levels of certain fluorinated impurities. The SNUR designates as a “significant new use” the absence of these protective measures.
1. Risk notification. If the company becomes aware that the PMN substances may present a risk of injury to human health or the environment, the company must incorporate this new information, and any information on methods for protecting against such risk into a Material Safety Data Sheet (MSDS), within 90 days.
2. Use of personal protective equipment including impervious gloves and a National Institute of Occupational Safety and Health (NIOSH)-certified respirator with an assigned protection factor (APF) of at least 10, when there is potential exposure.
3. Establishment and use of a hazard communication program, including health hazard precautionary statements on each label and the MSDS.
4. Use of the PMN substance only as a chemical intermediate. Any chemical substance manufactured using the PMN substance may contain residuals of the PMN substance at a certain maximum level.
5. Recover and convert, capture (destroy), recycle, or reuse the substance at a certain overall efficiency when the PMN substance is used as an intermediate in accordance with the provisions.
6. Not use the PMN substance in consumer products.
The SNUR designates as a “significant new use” the absence of these protective measures.
During review of the PMNs submitted for the chemical substances that are subject to these SNURs, EPA concluded that for 9 of the 30 chemical substances, regulation was warranted under TSCA section 5(e), pending the development of information sufficient to make reasoned evaluations of the health or environmental effects of the chemical substances. The basis for such findings is outlined in Unit IV. Based on these findings, TSCA section 5(e) consent orders requiring the use of appropriate exposure controls were negotiated with the PMN submitters. The SNUR provisions for these chemical substances are consistent with the provisions of the TSCA section 5(e) consent orders. These SNURs are promulgated pursuant to § 721.160 (see Unit VI.).
In the other 21 cases, where the uses are not regulated under a TSCA section 5(e) consent order, EPA determined that one or more of the criteria of concern established at § 721.170 were met, as discussed in Unit IV.
EPA is issuing these SNURs for specific chemical substances which have undergone premanufacture review because the Agency wants to achieve the following objectives with regard to the significant new uses designated in this rule:
• EPA will receive notice of any person's intent to manufacture or process a listed chemical substance for the described significant new use before that activity begins.
• EPA will have an opportunity to review and evaluate data submitted in a SNUN before the notice submitter begins manufacturing or processing a listed chemical substance for the described significant new use.
• EPA will be able to regulate prospective manufacturers or processors of a listed chemical substance before the described significant new use of that chemical substance occurs, provided that regulation is warranted pursuant to TSCA section 5(e), 5(f), 6, or 7.
• EPA will ensure that all manufacturers and processors of the same chemical substance that is subject to a TSCA section 5(e) consent order are subject to similar requirements.
Issuance of a SNUR for a chemical substance does not signify that the chemical substance is listed on the TSCA Chemical Substance Inventory (TSCA Inventory). Guidance on how to determine if a chemical substance is on the TSCA Inventory is available on the
EPA is issuing these SNURs as a direct final rule, as described in § 721.160(c)(3) and § 721.170(d)(4). In accordance with § 721.160(c)(3)(ii) and § 721.170(d)(4)(i)(B), the effective date of this rule is December 1, 2015 without further notice, unless EPA receives written adverse or critical comments, or notice of intent to submit adverse or critical comments before November 2, 2015.
If EPA receives written adverse or critical comments, or notice of intent to submit adverse or critical comments, on one or more of these SNURs before November 2, 2015, EPA will withdraw the relevant sections of this direct final rule before its effective date. EPA will then issue a proposed SNUR for the chemical substance(s) on which adverse or critical comments were received, providing a 30-day period for public comment.
This rule establishes SNURs for a number of chemical substances. Any person who submits adverse or critical comments, or notice of intent to submit adverse or critical comments, must identify the chemical substance and the new use to which it applies. EPA will not withdraw a SNUR for a chemical substance not identified in the comment.
To establish a significant new use, EPA must determine that the use is not ongoing. The chemical substances subject to this rule have undergone premanufacture review. In cases where EPA has not received a notice of commencement (NOC) and the chemical substance has not been added to the TSCA Inventory, no person may commence such activities without first submitting a PMN. Therefore, for chemical substances for which an NOC has not been submitted EPA concludes that the designated significant new uses are not ongoing.
When chemical substances identified in this rule are added to the TSCA Inventory, EPA recognizes that, before the rule is effective, other persons might engage in a use that has been identified as a significant new use. However, TSCA section 5(e) consent orders have been issued for 9 of the 30 chemical substances, and the PMN submitters are prohibited by the TSCA section 5(e) consent orders from undertaking activities which would be designated as significant new uses. The identities of 22 of the 30 chemical substances subject to this rule have been claimed as confidential and EPA has received no post-PMN
Therefore, EPA designates October 2, 2015 as the cutoff date for determining whether the new use is ongoing. Persons who begin commercial manufacture or processing of the chemical substances for a significant new use identified as of that date would have to cease any such activity upon the effective date of the final rule. To resume their activities, these persons would have to first comply with all applicable SNUR notification requirements and wait until the notice review period, including any extensions, expires. If such a person met the conditions of advance compliance under § 721.45(h), the person would be considered exempt from the requirements of the SNUR. Consult the
EPA recognizes that TSCA section 5 does not require developing any particular test data before submission of a SNUN. The two exceptions are:
1. Development of test data is required where the chemical substance subject to the SNUR is also subject to a test rule under TSCA section 4 (see TSCA section 5(b)(1)).
2. Development of test data may be necessary where the chemical substance has been listed under TSCA section 5(b)(4) (see TSCA section 5(b)(2)).
In the absence of a TSCA section 4 test rule or a TSCA section 5(b)(4) listing covering the chemical substance, persons are required only to submit test data in their possession or control and to describe any other data known to or reasonably ascertainable by them (see 40 CFR 720.50). However, upon review of PMNs and SNUNs, the Agency has the authority to require appropriate testing. In cases where EPA issued a TSCA section 5(e) consent order that requires or recommends certain testing, Unit IV. lists those tests. Unit IV. also lists recommended testing for non-5(e) SNURs. Descriptions of tests are provided for informational purposes. EPA strongly encourages persons, before performing any testing, to consult with the Agency pertaining to protocol selection. To access the OCSPP test guidelines referenced in this document electronically, please go to
In the TSCA section 5(e) consent orders for several of the chemical substances regulated under this rule, EPA has established production volume limits in view of the lack of data on the potential health and environmental risks that may be posed by the significant new uses or increased exposure to the chemical substances. These limits cannot be exceeded unless the PMN submitter first submits the results of toxicity tests that would permit a reasoned evaluation of the potential risks posed by these chemical substances. Under recent TSCA section 5(e) consent orders, each PMN submitter is required to submit each study before reaching the specified production limit. Listings of the tests specified in the TSCA section 5(e) consent orders are included in Unit IV. The SNURs contain the same production volume limits as the TSCA section 5(e) consent orders. Exceeding these production limits is defined as a significant new use. Persons who intend to exceed the production limit must notify the Agency by submitting a SNUN at least 90 days in advance of commencement of non-exempt commercial manufacture or processing.
The recommended tests specified in Unit IV. may not be the only means of addressing the potential risks of the chemical substance. However, submitting a SNUN without any test data may increase the likelihood that EPA will take action under TSCA section 5(e), particularly if satisfactory test results have not been obtained from a prior PMN or SNUN submitter. EPA recommends that potential SNUN submitters contact EPA early enough so that they will be able to conduct the appropriate tests.
SNUN submitters should be aware that EPA will be better able to evaluate SNUNs which provide detailed information on the following:
• Human exposure and environmental release that may result from the significant new use of the chemical substances.
• Potential benefits of the chemical substances.
• Information on risks posed by the chemical substances compared to risks posed by potential substitutes.
By this rule, EPA is establishing certain significant new uses which have
Under these procedures a manufacturer or processor may request EPA to determine whether a proposed use would be a significant new use under the rule. The manufacturer or processor must show that it has a
If EPA determines that the use identified in the
According to § 721.1(c), persons submitting a SNUN must comply with the same notification requirements and EPA regulatory procedures as persons submitting a PMN, including submission of test data on health and environmental effects as described in 40 CFR 720.50. SNUNs must be submitted on EPA Form No. 7710–25, generated using e-PMN software, and submitted to the Agency in accordance with the procedures set forth in 40 CFR 720.40 and § 721.25. E–PMN software is available electronically at
EPA has evaluated the potential costs of establishing SNUN requirements for potential manufacturers and processors of the chemical substances subject to this rule. EPA's complete economic analysis is available in the docket under docket ID number EPA–HQ–OPPT–2015–0388.
This action establishes SNURs for several new chemical substances that were the subject of PMNs, or TSCA section 5(e) consent orders. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled
According to PRA (44 U.S.C. 3501
The information collection requirements related to this action have already been approved by OMB pursuant to PRA under OMB control number 2070–0012 (EPA ICR No. 574). This action does not impose any burden requiring additional OMB approval. If an entity were to submit a SNUN to the Agency, the annual burden is estimated to average between 30 and 170 hours per response. This burden estimate includes the time needed to review instructions, search existing data sources, gather and maintain the data needed, and complete, review, and submit the required SNUN.
Send any comments about the accuracy of the burden estimate, and any suggested methods for minimizing respondent burden, including through the use of automated collection techniques, to the Director, Collection Strategies Division, Office of Environmental Information (2822T), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460–0001. Please remember to include the OMB control number in any correspondence, but do not submit any completed forms to this address.
On February 18, 2012, EPA certified pursuant to RFA section 605(b) (5 U.S.C. 601
1. A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
2. The SNUR submitted by any small entity would not cost significantly more than $8,300.
A copy of that certification is available in the docket for this action.
This action is within the scope of the February 18, 2012 certification. Based on the Economic Analysis discussed in Unit XI. and EPA's experience promulgating SNURs (discussed in the certification), EPA believes that the following are true:
• A significant number of SNUNs would not be submitted by small entities in response to the SNUR.
• Submission of the SNUN would not cost any small entity significantly more than $8,300.
Therefore, the promulgation of the SNUR would not have a significant economic impact on a substantial number of small entities.
Based on EPA's experience with proposing and finalizing SNURs, State, local, and Tribal governments have not been impacted by these rulemakings, and EPA does not have any reasons to believe that any State, local, or Tribal government will be impacted by this action. As such, EPA has determined
This action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999).
This action does not have Tribal implications because it is not expected to have substantial direct effects on Indian Tribes. This action does not significantly nor uniquely affect the communities of Indian Tribal governments, nor does it involve or impose any requirements that affect Indian Tribes. Accordingly, the requirements of Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000), do not apply to this action.
This action is not subject to Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), because this is not an economically significant regulatory action as defined by Executive Order 12866, and this action does not address environmental health or safety risks disproportionately affecting children.
This action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because this action is not expected to affect energy supply, distribution, or use and because this action is not a significant regulatory action under Executive Order 12866.
In addition, since this action does not involve any technical standards, NTTAA section 12(d) (15 U.S.C. 272 note), does not apply to this action.
This action does not entail special considerations of environmental justice related issues as delineated by Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Reporting and recordkeeping requirements.
Environmental protection, Chemicals, Hazardous substances, Reporting and recordkeeping requirements.
Therefore, 40 CFR parts 9 and 721 are amended as follows:
7 U.S.C. 135
15 U.S.C. 2604, 2607, and 2625(c).
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for the substance, the employer becomes aware that the substances may present a risk of injury to human health or the environment, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a MSDS as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If the substance is not being manufactured, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive the PMN substance from the employer, or who have received the PMN substance from the employer within 5 years from the date the employer becomes aware of the new information described in paragraph (a)(2)(i)(A) of this section, are provided an MSDS containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for the substance, the employer becomes aware that the substances may present a risk of injury to human health or the environment, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a MSDS as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If the substance is not being manufactured, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance is reintroduced into the workplace.
(B) The employer must ensure that persons who will receive the PMN substance from the employer, or who have received the PMN substance from the employer within 5 years from the date the employer becomes aware of the new information described in paragraph (a)(2)(i)(A) of this section, are provided an MSDS containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for the substances, the employer becomes aware that the substances may present a risk of injury to human health or the environment, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a MSDS as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If the substance(s) are not being manufactured, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance(s) are reintroduced into the workplace.
(B) The employer must ensure that persons who will receive the PMN substance(s) from the employer, or who have received the PMN substance(s) from the employer within 5 years from the date the employer becomes aware of the new information described in paragraph (a)(2)(i)(A) of this section, are provided an MSDS containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(ii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii)
(A) If as a result of the test data required under the TSCA section 5(e) consent order for the substances, the employer becomes aware that the substances may present a risk of injury to human health or the environment, the employer must incorporate this new information, and any information on methods for protecting against such risk, into a MSDS as described in § 721.72(c) within 90 days from the time the employer becomes aware of the new information. If the substance(s) are not being manufactured, processed, or used in the employer's workplace, the employer must add the new information to a MSDS before the substance(s) are reintroduced into the workplace.
(B) The employer must ensure that persons who will receive the PMN substance(s) from the employer, or who have received the PMN substance(s) from the employer within 5 years from the date the employer becomes aware of the new information described in paragraph (a)(2)(i)(A) of this section, are provided an MSDS containing the information required under paragraph (a)(2)(i)(A) of this section within 90 days from the time the employer becomes aware of the new information.
(iii)
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified generically as substituted carboxamide (PMN P–14–756) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a) Chemical substance and significant new uses subject to reporting. (1) The chemical substance identified as phosphoric acid, sodium titanium (4+) salt (3:1:2) (PMN P–14–804; CAS No. 22239–24–3) is subject to reporting under this section for the significant new uses described in paragraph (a)(2) of this section.
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(3)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified power air-purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters.
(B) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet.
(ii)
(iii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified power air-purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters.
(B) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet.
(C) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece.
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified power air-purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance specific) cartridges in combination with HEPA filters.
(B) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet.
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(A) NIOSH-certified power air-purifying respirator with a hood or helmet and with appropriate gas/vapor (acid gas, organic vapor, or substance
(B) NIOSH-certified continuous flow supplied-air respirator equipped with a loose fitting facepiece, hood, or helmet.
(C) NIOSH-certified negative pressure (demand) supplied-air respirator with a full facepiece.
(ii)
(b)
(1)
(2)
(a)
(2) The significant new uses are:
(i)
(ii) [Reserved]
(b)
(1)
(2)
Environmental Protection Agency (EPA).
Final rule; correcting amendment.
On June 11, 2015, the Environmental Protection Agency (EPA) published a final rule in the
This action is effective on October 2, 2015.
Kevin Gong, EPA Region IX, (415) 972–3073,
This action corrects inadvertent errors in a rulemaking related to BCAQMD's SIP-approved definitions. On June 11, 2015 (80 FR 33195), the EPA published a direct final rulemaking action approving revisions to various sections of the California State Implementation Plan (SIP). This action contained regulatory text amendments to 40 CFR part 52, subpart F. The amendments, which incorporated material by reference into section 52.220, Identification of plan, paragraph (c)(457), omitted regulatory language that addressed the replacement of Butte County Air Pollution Control District (BCAPCD) Rule 101—“Title” and parts of BCAPCD Rule 102—“Definitions” with BCAQMD Rule 101—“Definitions” as described in Footnote 1 of 80 FR 33195. This action adds regulatory text to clarify the rules or portions of rules that were superseded in the Butte County AQMD portion of the California SIP by our June 11, 2015 direct final action.
The EPA has determined that this action falls under the “good cause” exemption in section 553(b)(3)(B) of the Administrative Procedures Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation where public notice and comment procedures are impracticable, unnecessary, or contrary to the public interest. Public notice and comment for this action is unnecessary because this action correcting inadvertent regulatory text errors included in the EPA's June 11, 2015 final rule is consistent with the substantive revision to the California SIP as described in the preamble of said action concerning definitions for the BCAQMD portion of the California SIP. In addition, the EPA can identify no particular reason why the public would be interested in having the opportunity to comment on the correction prior to this action being finalized, since this correction action does not change the EPA's analysis or overall action related to the approval of BCAQMD's revisions to their definitions into the California SIP.
The EPA also finds that there is good cause under APA section 553(d)(3) for this correction to become effective on the date of publication of this action. Section 553(d)(3) of the APA allows an effective date of less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). The purpose of the 30-day waiting period prescribed in APA section 553(d)(3) is to give affected parties a reasonable time to adjust their behaviour 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 action merely corrects inadvertent errors for the regulatory text of the EPA's prior rulemaking for the California SIP. For these reasons, the EPA finds good cause under APA section 553(d)(3) for this correction to become effective on the date of publication of this action.
As published, the final regulations omitted amendatory language that addressed the replacement of BCAQMD Rule 101.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and
Because this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute, it is not subject to the provisions of the Regulatory Flexibility Act (5 U.S.C. 601
Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business Regulatory Enforcement Fairness Act of 1996, the EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives and the Comptroller General of the General Accounting Office prior to publication of this rule in the
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
Accordingly, 40 CFR part 52 is corrected by making the following correcting amendments:
42 U.S.C. 7401
The revised text reads as follows:
(c) * * *
(168) * * *
(i) * * *
(A) * * *
(
(457) * * *
(i) * * *
(C) Butte County Air Quality Management District.
(
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the State Implementation Plan (SIP) submitted by the State of Missouri relating to the Limited Maintenance Plan for the St. Louis area for the 8-Hour Carbon Monoxide (CO) National Ambient Air Quality Standard (NAAQS). On April 8, 2014, the Missouri Department of Natural Resources (MDNR) submitted to EPA a second 10-year maintenance plan for the St. Louis area for the CO NAAQS. This maintenance plan addresses maintenance of the CO NAAQS for a second 10-year period beyond the original redesignation. In accordance with the requirements of the Clean Air Act (CAA), EPA is approving the revision because the State adequately demonstrates that the St. Louis Maintenance area will maintain air quality standards for CO through the year 2022.
This direct final rule will be effective December 1, 2015, without further notice, unless EPA receives adverse comment by November 2, 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 ID No. EPA–R07–OAR–2015–0513, by one of the following methods:
1.
2.
3.
Steven Brown, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at 913–551–7718 or by email at
Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following:
The EPA is taking direct final action to approve revisions to the SIP submitted by the State of Missouri relating to the Limited Maintenance Plan for the St. Louis area for the 8-hour CO NAAQS.
Eight years after an area is redesignated to attainment, CAA section 175A(b) requires the state to submit a subsequent maintenance plan to EPA, covering a second 10-year period. This maintenance plan must demonstrate continued compliance with the NAAQS during this second 10-year period.
On April 8, 2014, the MDNR submitted to EPA a second 10-year maintenance plan for the St. Louis area for the CO NAAQS and requested that EPA approve this revision as meeting the CAA section 175A requirements. This maintenance plan addresses maintenance of the CO NAAQS for a second 10-year period beyond the original redesignation.
This revision to Missouri's SIP does not have an adverse effect on air quality and EPA's approval of this SIP revision is being done in accordance with the requirements of the CAA.
Under section 107(d)(1)(C) of the Act, any area designated before the date of enactment of the CAA Amendments of 1990 was to be designated upon enactment by operation of law. CO nonattainment areas that had not violated the CO standard in either year for the two-year period 1988–1989 were to be designated nonattainment and identified as “not classified” nonattainment areas. Accordingly, because the St. Louis area had not violated the standard in the 1988–1989 period, on November 6, 1991, the St. Louis area was designated nonattainment for the CO NAAQS and identified as “not classified” on November 6, 1991 (56 FR 56786).
On June 13, 1997, the State requested EPA to redesignate the St. Louis nonattainment area to attainment and submitted a limited maintenance plan to demonstrate maintenance of the standard for a 10-year period. EPA published approval of the redesignation request and maintenance plan on January 26, 1999 (64 FR 3855). The State has maintained the standard since and recently submitted a second 10-year maintenance plan to EPA on April 8, 2014.
An areas design value (DV) for the 8-hour CO NAAQS is calculated by finding the second maximum 8 hour average value at each monitor, for each year, for two years. The higher second maximum is used as the areas DV and the 8-hour CO standard is attained when the daily average 8-hour CO concentration of 9.0 parts per million (ppm) is not exceeded more than once a year.
Since the redesignation of the St. Louis area to attainment for CO on January 26, 1999, the second highest concentration in any calendar year measured by the EPA approved monitoring network was 5.7 ppm, which is less than 9.0 ppm.
In addition, areas that can demonstrate design values at or below 7.65 ppm (85 percent of the 9.0 ppm CO NAAQS) for 8 consecutive quarters may use a limited maintenance plan option. The State has opted to develop a limited maintenance plan to fulfill the second 10-year maintenance plan required by the CAA. The base year in the State's second 10-year maintenance plan is 2008, which has a design value of 2.8 ppm. EPA also reviewed air quality monitoring data (2011–2012) and the 8-hour CO design value for the St. Louis area is 1.8 ppm. Thus, the area is well below the 7.65 ppm (85 percent of the 9.0 ppm CO NAAQS) for 8 consecutive quarters and qualifies to use the limited maintenance plan option.
The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, the revision meets the substantive SIP requirements of the CAA, including Section 110 and implementing regulations.
EPA has reviewed the St. Louis area second 10-year CO maintenance plan and concludes that the submittal meets the requirements of section 175A(b) of the Act. The following is a summary of the requirements and EPA's evaluation of how each requirement is met.
The plan must contain an attainment year emissions inventory to identify a level of emissions in the area which is sufficient to attain the CO NAAQS. The St. Louis area second 10-year CO maintenance plan contains an emissions inventory for the base year 2008 that is consistent with EPA's most recent guidance on maintenance plan emission inventories. The emissions inventory is a list, by source, of the air contaminants directly emitted into the St. Louis area. The data in the emissions inventory is based on calculations using emission factors, which is a method for converting source activity levels into an estimate of emissions contributions for those sources. Because violations of the CO NAAQS are most likely to occur on winter weekdays, the inventory prepared is in a “typical winter day” format. The table below shows the tons of CO emitted per winter day in 2008 by source category.
The maintenance plan demonstration requirement is considered to be satisfied for areas using the limited maintenance plan option, which are required to demonstrate design values at or below 7.65 ppm (85 percent of the 9.0 ppm CO NAAQS) for 8 consecutive quarters. The State has opted to develop a limited maintenance plan to fulfill the St. Louis area second 10-year maintenance plan required by the CAA.
With the limited maintenance plan option, there is no requirement to project emissions of air quality over the maintenance period. EPA believes that if the area begins the maintenance period at, or below, 85 percent of the 9.0 ppm of the CO 8-hour NAAQS, the applicability of prevention of significant deterioration requirements, the control measures already in the SIP, and Federal measures, should provide adequate assurance of maintenance over the 10-year maintenance period. The last monitored exceedance occurred in 1994 and previous to that, 1987. The St. Louis area met the requirements for the Limited Maintenance Plan option in the original redesignation and maintenance plan approval in 1999. The design value at that time (1994–1995) was 5.7 ppm and the monitored CO levels have been steadily in decline ever since. The 8-hour CO design value for the St. Louis area is 1.8 ppm based on 2011–2012 data, which is below the limited maintenance plan requirement of 7.65 ppm. Therefore, the St. Louis area has adequately demonstrated that it will maintain the CO NAAQS into the future.
To verify the attainment status of the area over the maintenance period, the maintenance plan should contain provisions for continued operation of an appropriate, EPA-approved monitoring network in accordance with 40 CFR part 58. The State has an approved monitoring network that includes the St. Louis area. The monitoring network was most recently approved by EPA on October 23, 2014. In the St. Louis second 10-year CO maintenance plan, MDNR commits to verify continued attainment through the EPA-approved monitoring network in accordance with 40 CFR part 58.
Section 175A(d) of the Act requires that a maintenance plan include contingency provisions. The St. Louis second 10-year CO limited maintenance plan contains a contingency plan that would institute lowering CO limits on existing rules that control CO emissions. The contingency plan is triggered either when (Level I) an exceedance of the 8 hour CO standard is recorded on any monitor, or (Level II) when a violation occurs at any monitor CO monitoring stations in the nonattainment area. EPA finds that the contingency measures provided in the maintenance plan are adequate to ensure prompt correction of a violation.
Transportation conformity is required by section 176(c) of the CAA. EPA's conformity rule requires that transportation plans, programs, and projects that are funded under 23 U.S.C. or the Federal Transit Act conform to SIPs. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS. The transportation conformity rule (40 CFR parts 51 and 93) and the general conformity rule (40 CFR parts 51 and 93) apply to nonattainment areas and maintenance areas covered by an approved maintenance plan. Under either conformity rule, an acceptable method of demonstrating that a Federal action conforms to the applicable SIP is to demonstrate that expected emissions from the planned action are consistent with the emissions budget for the area. While EPA's limited maintenance plan option does not exempt an area from the need to affirm conformity, it explains that the area may demonstrate conformity without submitting an emissions budget. Under the limited maintenance plan option, emissions budgets are essentially treated as not constraining for the length of the maintenance period because it is unreasonable to expect that the qualifying areas would experience so much growth in that period that a violation of the CO NAAQS would result. Similarly, Federal actions subject to the general conformity rule could be considered to satisfy the “budget test” specified in section 93.158(a)(5)(i)(A) for the same reasons that the budgets are essentially considered to be unlimited. While areas with maintenance plans approved under the limited maintenance plan option are not subject to the budget test, the areas remain subject to other transportation conformity requirements of 40 CFR part 93, subpart A. Thus, the metropolitan planning organization (MPO) in the area or the State must document and ensure that:
a. Transportation plans and projects provide for timely implementation of SIP transportation control measures in accordance with 40 CFR 93.113;
b. Transportation plans and projects comply with the fiscal constraint element per 40 CFR 93.108;
c. The MPO's interagency consultation procedures meet applicable requirements of 40 CFR 93.105;
d. Conformity of transportation plans is determined no less frequently than every four years, and conformity of plan amendments and transportation projects is demonstrated in accordance with the timing requirements specified in 40 CFR 93.104;
e. The latest planning assumptions and emissions model are used as set forth in 40 CFR 93.110 and 40 CFR 93.111;
f. Projects do not cause or contribute to any new localized CO or particulate matter violations, in accordance with procedures specified in 40 CFR 93.123; and
g. Project sponsors and/or operators provide written commitments as specified in 40 CFR 93.125.
The MPO and lead transportation agency in St. Louis is the East-West Gateway Council of Governments (EWG). EWG oversees transportation conformity determinations of the Interagency Consultation Committee established in Missouri Administrative Rule 10 CSR 10–5.480, which includes MDNR, the Missouri Transportation Department, the Federal Highway Administration, Federal Transit Administration, City of St. Louis Department of Health, St. Louis County Department of Health, St. Louis County Department of Highways and the EPA; as specified under 40 CFR part 93. St. Louis is currently meeting the requirements under 40 CFR part 93, subpart A.
EPA is taking direct final action to approve this SIP revision. We are publishing this rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. 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 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).
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
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 December 1, 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 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.
For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:
42 U.S.C. 7401
(e) * * *
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve two revisions to the Commonwealth of Pennsylvania (Pennsylvania) State Implementation Plan (SIP). The first revision consists of the 2007 base year emissions inventory for the Liberty-Clairton nonattainment area (hereafter “the Liberty-Clairton Area” or “the Area”) with respect the 2006 24-hour fine particulate matter (PM
This rule is effective on December 1, 2015 without further notice, unless EPA receives adverse written comment by November 2, 2015. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID Number EPA–R03–OAR–2015–0470 by one of the following methods:
A.
B. Email:
C.
D.
Emlyn Vélez-Rosa, (215) 814–2038, or by email at
On June 21, 2013, the Commonwealth Pennsylvania submitted, on behalf of Allegheny County, a formal revision to its SIP. The SIP revision consisted of the 2006 24-hour PM
Today's action only pertains to the approval of the 2007 base year emissions inventory to satisfy the requirement of section 172(c)(3) of the CAA and the transportation conformity insignificance findings to satisfy EPA's requirements at 40 CFR 93.118(e)(4) and 40 CFR 93.109(f).
On July 16, 1997, EPA established an annual PM
On January 5, 2005 (70 FR 944), EPA published its nonattainment area designations for the 1997 annual PM
On September 21, 2006, EPA retained the 1997 annual PM
Many petitioners challenged aspects of EPA's 2006 revisions to the PM
On November 13, 2009, EPA published designations for the 2006 24-hour PM
A nonattainment designation under the CAA triggers additional planning requirements for states to show attainment of the NAAQS in the nonattainment areas by a statutory attainment date, as specified in the CAA. Since 2005, EPA had implemented the 1997 and 2006 PM
While the regulatory provisions of EPA's 1997 PM
Although the DC Circuit declined to establish a deadline for EPA's response, EPA intends to respond promptly to the Court's remand and to promulgate new generally applicable implementation regulations for the PM
The statutory provisions in subpart 4 require EPA, among other things, to classify nonattainment areas for the PM
On April 25, 2014, EPA finalized a rule identifying the classification of all PM
On July 10, 2015 (80 FR 39696), EPA determined that the Liberty-Clairton Area had attained the 2006 24-hour PM
EPA incorporated its Clean Data Policy interpretation in both its 8-Hour Ozone Implementation Rule in 40 CFR 51.918 and in its 1997 PM
After EPA's final clean data determination for the Liberty-Clairton Area for the 2006 24-hour PM
As discussed earlier, the Liberty-Clairton's base year emissions inventory was submitted by Pennsylvania Department of the Environmental Protection (PADEP), on behalf of Allegheny County Health Department (ACHD), as part of the June 21, 2013 SIP revision to demonstrate attainment of the 2006 24-hour PM
The 2007 base year emissions inventory for the Liberty-Clairton Area intends to satisfy the requirements of section 172(c)(4) of the CAA for the 2006 24-hour PM
The 2007 emissions inventory submitted is the most current accurate and comprehensive actual emissions inventory of direct PM
EPA has reviewed the procedures and methodologies used by ACHD for the 2007 base year emissions inventory submitted as part of the June 21, 2013 SIP revision and finds the inventory approvable. Further analysis of the emissions inventory development can be found in technical support document (TSD) dated August 12, 2015 included as part of the docket for this rulemaking action.
Transportation conformity is required under section 176(c) of the CAA to ensure that federally supported highway, transit projects, and other activities are consistent with (conform to) the purpose of the SIP. The CAA requires federal actions in nonattainment and maintenance areas to “conform to” the goals of SIP. This means that such actions will not cause or contribute to violations of a NAAQS; worsen the severity of an existing violation; or delay timely attainment of any NAAQS or any interim milestone. Actions involving Federal Highway Administration (FHWA) or Federal Transit Administration (FTA) funding or approval are subject to the Transportation Conformity Rule (40 CFR part 93, subpart A). Under this rule, metropolitan planning organizations (MPOs) in nonattainment and maintenance areas coordinate with state air quality and transportation agencies, EPA, FHWA, and FTA to demonstrate that their metropolitan transportation plans and transportation improvement plans (TIPs) conform to applicable SIPs. This is typically determined by showing that estimated emissions from existing and planned highway and transit systems are less than or equal to the motor vehicle emissions budgets (MVEBs) contained in a SIP.
For MVEBs to be approvable, they must meet, at a minimum, EPA's adequacy criteria found at 40 CFR 93.118(e)(4). However, the Transportation Conformity Rule at 40 CFR 93.109(f) allows areas to forgo establishment of a budget(s) where it is demonstrated that regional motor vehicle emissions for a particular pollutant or precursor pollutant are an insignificant contributor to the air quality problem in the area. The general criteria for insignificance determinations per 40 CFR 93.109(f) are based on a number of factors, including: (1) The percentage of motor vehicle emissions in context of the total SIP inventory; (2) the current state of air quality as determined by monitoring data for that NAAQS; (3) the absence of SIP motor vehicle control measures; and (4) historical trends and future projections of the growth of motor vehicle emissions in the area.
The Liberty-Clairton's attainment demonstration for the 2006 24-hour PM
EPA bases these findings on several factors: (1) The fact that the motor vehicle emissions constitute a low percentage of the total SIP inventory. In particular, for the 2007 base year, the direct PM onroad mobile source constitutes 0.99 percent (%) of the Liberty-Clairton Area's total PM
With regard to on-road emissions of SO
In this direct final rulemaking action, EPA is initiating the process for determining whether or not the motor vehicle emission inventories are adequate for transportation conformity purposes. The publication of this document starts a 30-day public comment period on the adequacy of the submitted motor vehicle emission inventories. This comment period is concurrent with the comment period on this direct final rulemaking action. Any comments on the motor vehicle emission inventories should be submitted to the docket for this rulemaking. The public can find the posting of these motor vehicle emissions inventories on EPA's adequacy Web page (
EPA is approving as a revision to the Pennsylvania SIP the Liberty-Clairton Area's 2007 base year emissions inventory for the 2006 24-hour PM
EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA 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 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
• 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 1, 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, Nitrogen dioxide, Particulate matter, Sulfur oxides, Volatile organic compounds.
40 CFR part 52 is amended as follows:
42 U.S.C. 7401
(e) * * *
(1) * * *
(y) EPA approves as a revision to the Pennsylvania State Implementation Plan the 2007 base year emissions inventory for the Liberty-Clairton 2006 24-hour PM
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving State Implementation Plan (SIP) revisions submitted by the State of South Dakota on July 29, 2013. This SIP submission revises the Administrative Rules of South Dakota (ARSD) Article 74:36—Air Pollution Control Program. These revisions include renumbering, revisions to the date of incorporation by reference of the federal regulations referenced throughout ARSD Article 74:36, and removal of obsolete language regarding variance provisions and clean units. EPA is also clarifying a final rule issued on January 29, 2015 pertaining to South Dakota's infrastructure SIP. This action is being taken in accordance with section 110 of the Clean Air Act (CAA).
This final rule is effective on November 2, 2015.
EPA has established a docket for this action under Docket Identification Number EPA–R08–OAR–2014–0916. All documents in the docket are listed on the
Adam Clark, Air Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P–AR, 1595 Wynkoop, Denver, Colorado 80202–1129, (303) 312–7104,
South Dakota's July 29, 2013 submittal covers the following rule changes: (1) Removal of obsolete language regarding variance provisions and clean units, and renumbering to reflect the deletions; and (2) Revisions to the date of federal regulations referenced throughout ARSD Article 74:36 to July 1, 2012. A cross-walk table that identifies EPA's action on South Dakota's revisions is included in the docket for this rulemaking.
South Dakota's July 29, 2013 submittal also requests EPA approval of rule revisions for provisions that are not required to be included in SIPs under section 110 of the CAA, most notably additions to the State's New Source Performance Standards, National Emissions Standards for Hazardous Air Pollutants and Title V permitting. These revisions, on which EPA is not taking action, are outlined in the cross-walk table located in the docket for this rulemaking.
EPA is finalizing action on South Dakota's July 29, 2013 submittal as outlined in Section III. of the proposal published on July 14, 2015, with one exception; EPA's proposed approval of South Dakota's updates to 74:36:05, “Operating Permits for Part 70 Sources,” as part of its July 14, 2015 action (80 FR 40953). EPA published a notice of correction of the proposal on August 24, 2015 (80 FR 51152), because CAA Title V requirements are not subject to Section 110 of the Clean Air Act and are thus not required to be incorporated into a SIP. Therefore, EPA is not taking any action on South Dakota's updates to 74:36:05.
Under CAA sections 110(a)(1) and (2), states are required to submit infrastructure SIPs to ensure their SIPs provide for implementation, maintenance, and enforcement of the National Ambient Air Quality Standards (NAAQS). On January 29, 2015, EPA took final action on the infrastructure submittals which addressed several different NAAQS from the State of South Dakota (80 FR 4799). As part of the January 29, 2015 action, EPA approved South Dakota's 1997 PM
EPA received one comment on the July 14, 2015 proposal with respect to air quality measurements. EPA acknowledges this comment but does not consider the comment to be relevant to the proposed action.
In this rulemaking, EPA is approving most remaining portions of South Dakota's July 29, 2013 submittal as outlined in the crosswalk table located in the docket for this action. EPA is not taking action on certain portions of this submittal as described in the proposed rulemaking and the notice of correction to the proposal. Finally, EPA is also clarifying no action was required in the January 29, 2015 final action (80 FR 4799) regarding the effective date of approval for South Dakota's SIP regarding CAA section 110(a)(2)(D)(i)(II) for the 1997 PM
In this rulemaking, EPA is including final EPA rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, EPA is incorporating by reference the rules in ARSD Article 74:36 submitted by South Dakota for action which are identified within this notice of rulemaking. EPA has made, and will continue to make, these documents generally available electronically through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations 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 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).
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
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
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
The revisions and additions read as follows:
(c) * * *
(1) * * *
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is approving the Commonwealth of Pennsylvania's request to redesignate to attainment the Pittsburgh Nonattainment Area (Pittsburgh Area or Area) for the 1997 annual and 2006 24-hour fine particulate matter (PM
This final rule is effective on October 2, 2015.
EPA has established a docket for this action under Docket ID Number EPA–R03–OAR–2015–0029. All documents in the docket are listed in the
Rose Quinto at (215) 814–2182, or by email at
On December 22, 2014, the Commonwealth of Pennsylvania, through the Pennsylvania Department of Environmental Protection (PADEP), formally submitted a request to redesignate the Pittsburgh Area from nonattainment to attainment for the 1997 annual and 2006 24-hour PM
On May 20, 2015 (80 FR 28906), EPA published a notice of proposed rulemaking (NPR) for Pennsylvania. In the NPR, EPA proposed approval of Pennsylvania's December 22, 2014 request to redesignate the Pittsburgh Area to attainment for the 1997 annual and 2006 24-hour PM
The details of Pennsylvania's submittal and the rationale for EPA's proposed actions are explained in the NPR and will not be restated here. No adverse public comments were received on the NPR.
EPA is taking final actions on the redesignation request and SIP revisions
In accordance with 5 U.S.C. 553(d), EPA finds there is good cause for this rulemaking action to become effective immediately upon publication. A delayed effective date is unnecessary due to the nature of a redesignation to attainment, which eliminates CAA obligations that would otherwise apply. The immediate effective date for this rulemaking 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. Today's rulemaking action, however, does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, today's rulemaking action relieves the Commonwealth of Pennsylvania of the obligation to comply with nonattainment-related planning requirements for the Pittsburgh Area pursuant to part D of the CAA and approves certain emissions inventories and MVEBs for the Pittsburgh Area. For these reasons, EPA finds good cause under 5 U.S.C. 553(d) for this rulemaking action to become effective on the date of publication.
Under the CAA, redesignation of an area to attainment and the accompanying approval of the maintenance plan under CAA section 107(d)(3)(E) are actions that affect the status of a geographical area and do not impose any additional regulatory requirements on sources beyond those required by state law. A redesignation to attainment does not in and of itself impose any new requirements, but rather results in the application of requirements contained in the CAA for areas that have been redesignated to attainment. Moreover, 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 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 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, 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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 1, 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, approving the redesignation request and maintenance plan for the Pittsburgh Area for the 1997 annual and 2006 24-hour PM
Environmental protection, Air pollution control, Incorporation by reference, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide, Volatile organic compounds.
Air pollution control, National parks, Wilderness areas.
40 CFR parts 52 and 81 are amended as follows:
42 U.S.C. 7401
(e) * * *
(1) * * *
(y) EPA approves as a revision to the Pennsylvania State Implementation Plan the 2007 and 2011 base year emissions inventories for the Pittsburgh-Beaver Valley 1997 annual and 2006 24-hour fine particulate matter (PM
(t) EPA approves the maintenance plan for the Pittsburgh nonattainment area for the 1997 annual and 2006 24-hour PM
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of benzovindiflupyr in or on multiple commodities that are identified and discussed later in this document. Syngenta Crop Protection, LLC., requested these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA).
This regulation is effective October 2, 2015. Objections and requests for hearings must be received on or before December 1, 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–2013–0141, 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 Printing 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–2013–0141 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 December 1, 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–2013–0141, by one of the following methods:
•
•
•
Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at
In the
That document referenced a summary of the petition prepared by Syngenta Crop Protection, the registrant, which is available in the docket,
Based upon review of the data supporting the petition, EPA has modified the requested tolerances and levels for the reasons explained in Unit IV.D.
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
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 benzovindiflupyr including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with benzovindiflupyr 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.
Benzovindiflupyr has low acute toxicity by the dermal and inhalation routes, with moderate toxicity via the oral route. It is not a dermal sensitizer, but causes mild skin irritation and moderate eye irritation. The target organs for effects of benzovindifulpyr are the liver, thyroid, and kidneys.
Benzovindiflupyr produced effects in rat fetuses (
No evidence of specific neurotoxicity was observed in the acute neurotoxicity (ACN) or subchronic neurotoxicity (SCN) studies. Benzovindiflupyr caused decreased activity and decreased grip strength in the neurotoxicity studies; however, there were no supportive neurohistopathology in any toxicological study, even at the highest doses tested.
There was no evidence of immune system toxicity in a study conducted in the mouse, or in any other toxicity studies in the database.
Benzovindiflupyr caused tumors in the thyroid in the chronic rat study at the highest dose tested. In mice, no tumor formation was observed. Benzovindiflupyr was negative in all mutagenicity studies. Based on the fact that evidence of tumors were found in only one species at only the highest dose tested and lack of mutagenicity, the Agency has determined that using a non-linear approach (
Specific information on the studies received and the nature of the adverse effects caused by benzovindiflupyr as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
1.
i.
Such effects were identified for benzovindiflupyr. In estimating acute dietary exposure, EPA used food consumption information from the United States Department of Agriculture (USDA), Nationwide Continuing Surveys of Food Intake by Individuals (CSFII). As to residue levels in food, EPA conducted a highly conservative acute dietary risk assessment which used tolerance-level residues for food except for livestock commodities, anticipated residues (based on maximum theoretical diets) for livestock commodities, and 100% crop treated for all commodities.
ii.
iii.
iv.
Section 408(b)(2)(E) of FFDCA authorizes EPA to use available data and information on the anticipated residue levels of pesticide residues in food and the actual levels of pesticide residues that have been measured in food. If EPA relies on such information, EPA must require pursuant to FFDCA section 408(f)(1) that data be provided 5 years after the tolerance is established, modified, or left in effect, demonstrating that the levels in food are not above the levels anticipated. For the present action, EPA will issue such data call-ins as are required by FFDCA section 408(b)(2)(E) and authorized under
2.
Based on the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) and Pesticide Root Zone Model Ground Water (PRZM GW), the estimated drinking water concentrations (EDWCs) of benzovindiflupyr for acute exposures are estimated to be 8.4 parts per billion (ppb) for surface water and 0.14 ppb for ground water. For chronic exposures for non-cancer assessments are estimated to be 5.4 ppb for surface water and <0.14 ppb for ground water.
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 8.4 parts per billion (ppb) for surface water was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 5.4 ppb for surface water was used to assess the contribution to drinking water.
3.
Benzovindiflupyr is proposed for registration for the following uses that could result in residential exposures: turf (
Residential handler exposure is expected to be short-term (ST) in duration. Intermediate-term (IT) exposures are not likely because of the intermittent nature of applications by homeowners. In addition, since the toxicity endpoints and PODs are the same for all durations, the ST assessment will be protective of any longer term exposures that may result from residential uses. Since no dermal hazard was identified for benzovindiflupyr in the toxicological database, only inhalation exposure assessments were conducted for residential handlers.
There is the potential for post-application exposure to individuals (adults and children) as a result of being in an environment that has been previously treated with benzovindiflupyr. Post-application inhalation exposures while performing activities in previously treated turf or ornamentals are not expected and were not assessed primarily due to the very low vapor pressure and the expected dilution in outdoor air after an application has occurred. In addition, no dermal hazard was identified in the toxicity database for benzovindiflupyr and, therefore, a quantitative residential post-application dermal risk assessment is not required and was not completed. However, incidental oral exposures to children contacting treated turf have been assessed. Residential post-application exposures are generally considered to be intermittent and short-term in duration. Since the benzovindiflupyr toxicity endpoints and PODs are the same regardless of duration, the short-term assessment is protective of any longer term exposures that may occur from the residential uses of benzovindiflupyr. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
4.
1.
2.
3.
i. The toxicity database for benzovindiflupyr is complete.
ii. There is no indication that benzovindiflupyr is a neurotoxic
iii. There is no evidence that benzovindiflupyr results in increased susceptibility in
iv. There are no residual uncertainties identified in the exposure databases. EPA made conservative (protective) assumptions in the ground and surface water modeling used to assess exposure to benzovindiflupyr in drinking water. EPA also made conservative assumptions for dietary food exposures (residues on food and feed crops based on tolerance level residues, assuming 100% crop treated) resulting in high-end estimates of dietary food. EPA used similarly conservative assumptions based on conservative default (non-chemical specific) assumptions to assess postapplication exposure of children, including incidental oral exposure of toddlers. These assessments will not underestimate the exposure and risks posed by benzovindiflupyr.
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.
1.
2.
3.
4.
5.
6.
Adequate enforcement methodology (A Quick, Easy, Cheap, Effective, Rugged, and Safe (QuEChERS) multi-residue method (EN15662:2009)) is available to enforce the tolerance expression. The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755–5350; telephone number: (410) 305–2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for benzovindiflupyr.
EPA received a comment to the notice of filing, which requested that the Agency reconsider the acceptable residue levels of toxic chemicals on food. The Agency understands the commenter's concerns and recognizes that some individuals believe that pesticides should be banned on agricultural crops. However, the existing legal framework provided by section 408 of the Federal Food, Drug and Cosmetic Act (FFDCA) states that tolerances may be set when persons seeking such tolerances or exemptions have demonstrated that the pesticide meets the safety standard imposed by that statute. This citizen's comment appears to be directed at the underlying statute and not EPA's implementation of it; the citizen has made no contention that EPA has acted in violation of the statutory framework.
Benzovindiflupyr was evaluated by undergoing a global joint review between the EPA, the Pest Management Regulatory Agency (PMRA) of Canada, and the Federal Commission for the Protection against Sanitary Risk (COFEPRIS) of Mexico. Based upon review of the data supporting the petition and calculation procedures for tolerance determination, several tolerances modifications were required. Specifically, commodity definitions were modified for pea, hay; pea, vine; peanut, nutmeat; raisin; and potato, processed waste to reflect the current nomenclature used by the Agency. Several tolerance levels were adjusted to account for differences in the input data used for the calculation procedures for tolerance determination. For example, several trials considered to be independent trials by the petitioner were determined by the Agency to be replicate (not independent) trials and, as such, these data are inputed differently than data from independent trails. Based on this discrepancy, the Agency is establishing tolerances for the following commodities that are different
A tolerance was recommended for lowbush variety of blueberry in non-cropping years following a 365-day PHI. However, no tolerance will be established on the basis that it would cover non-bearing blueberries which are considered to be a non-food use. Also, the petitioner did not include this use in their notice filing. Although the petitioner did not request a separate tolerance for tomato, dried, tomato processing study data show that residues concentrate in dried tomatoes (7.8X). To cover the higher residues and to harmonize with Canada, EPA is establishing a tolerance for tomato, dried at 4 ppm. Finally, the applicant requested tolerances for apple, wet pomace. As a fruit, pome, group 11–10 tolerance of 0.2 ppm will cover any potential residues in processed apple, a separate tolerance is not needed.
Therefore, tolerances are established for residues of benzovindiflupyr, in or on barley, grain at 1.5 ppm; barley, hay at 15 ppm; barley, straw at 15 ppm; cattle, fat at 0.02 ppm; cattle, liver at 0.06 ppm; cattle, meat at 0.01 ppm; cattle, meat byproducts, except liver at 0.01 ppm; coffee, green bean at 0.09 ppm; corn, field, forage at 3.0 ppm; corn, field, grain at 0.02 ppm; corn, field, stover at 15 ppm; corn, pop, grain at 0.02 ppm; corn, pop, stover at 15 ppm; corn, sweet, forage at 4.0 ppm; corn, sweet, kernel plus cob with husks removed at 0.01 ppm; corn, sweet, stover at 5.0 ppm; cottonseed, subgroup 20C at 0.15 ppm; cotton, gin byproducts at 3.0 ppm; fruit, pome, group 11–10 at 0.20 ppm; fruit, small vine climbing, except fuzzy kiwifruit, subgroup 13–07F at 1 ppm; goat, fat at 0.02 ppm; goat, liver at 0.06 ppm; goat, meat at 0.01 ppm; goat, meat byproducts, except liver at 0.01 ppm; grain, aspirated fractions at 15 ppm; horse, fat at 0.02 ppm; horse, liver at 0.06 ppm; horse, meat at 0.01 ppm; horse, meat byproducts, except liver at 0.01 ppm; milk at 0.01 ppm; milk, fat at 0.02 ppm; oat, grain at 1.5 ppm; oat, hay at 15 ppm; oat, straw at 15 ppm; pea and bean, dried shelled, except soybean, subgroup 6C at 0.20 ppm; pea, field, hay at 7.0 ppm; pea, field, vine at 1.5 ppm; peanut at 0.01 ppm; peanut, hay at 15 ppm; potato, processed potato waste at 0.10 ppm; grape, raisin at 3.0 ppm; rapeseed, subgroup 20A at 0.15 ppm; rye, grain at 0.1 ppm; rye, hay at 15 ppm; rye, straw at 15 ppm; sheep, fat at 0.02 ppm; sheep, liver at 0.06 ppm; sheep, meat at 0.01 ppm; sheep meat byproducts, except liver at 0.01 ppm; soybean, forage at 15 ppm; soybean, hay at 50 ppm; soybean, hulls at 0.20 ppm; soybean, seed at 0.07 ppm; sugarcane, cane at 0.04 ppm; tomato, dried at 4.0 ppm; vegetable, cucurbit, group 9 at 0.30 ppm; vegetable, fruiting, group 8–10 at 1.5 ppm; vegetable, tuberous and corm, subgroup 1C at 0.02 ppm; wheat, forage at 4 ppm; wheat, grain at 0.10 ppm; wheat, hay at 15 ppm; and wheat, straw at 15 ppm.
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
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 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.
(a)
(b)
(c)
(d)
Bureau of Land Management, Interior.
Final rule.
This final rule amends the regulations pertaining to execution and filing of forms in order to reflect the new address of the BLM Eastern States Office of the Bureau of Land Management (BLM). All filings and other documents relating to public lands in the States of Arkansas, Iowa, Louisiana, Minnesota, Missouri and all States east of the Mississippi River must be filed at the new address of the State Office.
This rule is effective October 2, 2015.
You may send inquiries or suggestions to Deputy State Director for Communications, BLM Eastern States Office, 20 M Street SE., Suite 950, Washington, DC 20003.
Bob Gillcash, (202) 912–7712. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339, 24 hours a day, 7 days a week.
This final rule reflects the administrative action of changing the street address of the Eastern States office of the BLM. This rule changes both the postal and street address for the personal filing of documents relating to public lands in Arkansas, Iowa, Louisiana, Minnesota, Missouri, and all States east of the Mississippi River, but makes no other changes in filing requirements. The BLM has determined that the rule has no substantive impact on the public, imposes no costs, and merely updates a list of addresses included in the Code of Federal Regulations for the convenience of the public. The Department of the Interior, therefore, for good cause finds that under 5 U.S.C. 553(b)(B) and 553(d)(3) notice and public comment procedures are unnecessary and that the rule may take effect immediately.
This final rule is an administrative action to change the address for one BLM State Office. This rule was not subject to review by the Office of Management and Budget under Executive Order 12866. The rule imposes no costs, and merely updates a list of addresses included in the Code of Federal Regulations for the convenience of the public.
The BLM has found that this final rule is of a procedural nature and thus is categorically excluded from environmental review under Section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4332(2)(C), pursuant to 43 CFR 46.210(i). In addition, this final rule does not present any of the 12 extraordinary circumstances listed at 43 CFR 46.215. Pursuant to 43 CFR 46.205 and the Council on Environmental Quality regulations at 40 CFR 1508.4, the term “categorical exclusion” means a category or kind of action that has no
Congress enacted the Regulatory Flexibility Act of 1980 (5 U.S.C. 601,
This final rule is a purely administrative regulatory action having no effects upon the public or the economy. This is not a major rule under the Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 804(2)). This rule will not have an annual effect on the economy of $100 million or more. This rule will not cause a major increase in costs of prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. This rule will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to complete with foreign-based enterprises.
The BLM has determined that this final rule is not significant under the Unfunded Mandates Reform Act of 1995 because the rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year. Further, this final rule will not significantly or uniquely affect small governments. It does not require action by any non-Federal government entity. Therefore, the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
As required by Executive Order 12630, the Department of the Interior has determined that this rule would not cause a taking of private property. No private property rights would be affected by a rule that merely reports an address change for the Eastern States Office. The Department therefore certifies that this final rule does not represent a governmental action capable of interference with constitutionally protected property rights.
In accordance with Executive Order 13132, the BLM finds that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.
This final rule does not have substantial direct effects on the States, on the relationship between the national governments and the States, or the distribution of power and the responsibilities among the various levels of government. This final rule does not preempt State law.
This final rule is a purely administrative regulatory action having no effects upon the public. It will not unduly burden the judicial system, and meets the requirements of Sections 3(a) and 3(b)(2) of the Executive Order.
In accordance with the Executive Order 13175, the BLM finds that this rule does not include policies that have tribal implications. This final rule is purely an administrative action having no effects upon the public or the environment, imposing no costs, and merely updates the Eastern States Office address included in the Code of Federal Regulations.
In accordance with Executive Order 13211, the BLM has determined that this final rule will not have substantial direct effects on the energy supply, distribution or use, including a shortfall in supply or price increase. This final rule is a purely administrative action and has no implications under Executive Order 13211.
The Paperwork Reduction Act does not apply because this rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501,
Administrative practice and procedure, Archives and records, Public lands.
For the reasons discussed in the preamble, the Bureau of Land Management amends 43 CFR part 1820 as follows:
5 U.S.C. 552, 43 U.S.C. 2, 1201, 1733, and 1740.
(a) * * *
Eastern States Office, 20 M Street SE., Suite 950, Washington, DC 20003—Arkansas, Iowa, Louisiana, Minnesota, Missouri, and all States east of the Mississippi River.
Federal Communications Commission.
Final rule.
In this document, the Commission adopts satellite television market modification rules to implement section 102 of the Satellite Television Extension and Localism Act Reauthorization (STELAR) Act of 2014. The STELAR gives the Commission authority to modify a commercial television broadcast station's local television market for purposes of satellite carriage rights. In this document, the Commission revises the current cable market modification rule
Effective November 2, 2015, except §§ 76.59(a) and (b) which contain information collection requirements that have not been approved by OMB. The Commission will publish a document in the
Evan Baranoff,
This is a summary of the Commission's
1. In this Report and Order, the Commission adopts rules to enable commercial television stations, satellite carriers and cable operators to better serve the interests of their local communities. These rules implement an important provision in the Satellite Television Extension and Localism Act Reauthorization Act of 2014 (“STELAR”) to promote carriage of in-state and other relevant local television programming. Specifically, in the STELAR, Congress recognized that satellite subscribers in some communities across the country are not able to access broadcast stations in their own states via the local television packages offered by satellite carriers. This problem results from the way TV stations are defined as “local” for purposes of satellite carriage. In some cases, subscribers may be included in a local television programming market that is served exclusively, or almost exclusively, by television stations in a neighboring state. As a result, these subscribers are not receiving news, politics, sports, emergency information and other television programming relevant to their home state. The STELAR seeks to address this problem by changing the laws to provide for “market modifications” that add flexibility to the current definition of a local television programming market. Market modifications allow the Commission, upon request, to modify the local market assignment of a station to include such neighboring communities that are located in the same state as the station. As required by the STELAR, the Commission determines whether to grant a market modification based on consideration of five statutory factors that allow petitioners to demonstrate that they provide local service to the community. Significantly, in the STELAR, Congress included a factor requiring consideration of access to television stations that are located in the same state as the community considered for modification. Congress also added this factor to the existing market modification statutory factors applicable to cable operators. Our rules implement the STELAR to achieve the goal of better service for consumers. Finally, Congress recognized that satellite carriage of additional stations might be technically or economically infeasible in some circumstances. Accordingly, our rules implement this exception to the carriage requirements that would otherwise apply for modified markets. We recognize that the ability of the market modification rules to successfully address the problem of consumer access to in-state stations will depend in large part on broadcasters' willingness to grant retransmission consent to be carried in the new community and satellite carriers' technical ability to provide the in-state stations in the new community. Therefore, we strongly urge broadcasters and satellite carriers to work together to provide relief to consumers and achieve the goals of the STELAR (to promote access to in-state programming) in cases where carriage is technically feasible.
2. In this Report and Order, we adopt satellite television market modification rules to implement section 102 of the STELAR.
3. Section 102 of the STELAR, and the Commission's actions in this Report and
4. The following are among the key conclusions adopted in this Report and Order:
• We amend the cable market modification rule, section 76.59 of our rules, to apply also to satellite market modifications, and amend the rule to reflect the STELAR provisions that uniquely apply to satellite carriers, such as an exception if the resulting carriage is “not technically and economically feasible.”
• We conclude that the involved commercial broadcast station, satellite carrier, and county government have standing to file a satellite market modification petition. Petitions must be filed in accordance with the procedures for filing Special Relief petitions in section 76.7 of our rules.
• We conclude that the new in-state factor,
• We conclude that the evidentiary requirements for cable market modifications will apply to satellite market modifications. In addition, to satisfy the new in-state factor when applicable, we require a petitioner to make a statement in its petition that the station is licensed to a community within the same state as the new community.
• We conclude that market modifications will be considered separately in the cable and satellite contexts and that, in the satellite context, market modifications will apply only to the specific stations, satellite carriers, and communities addressed in a particular market modification petition.
• We conclude that prior cable market modification determinations will not automatically apply in the satellite context, nor will such prior decisions be afforded a presumption; however, we note that we are required to consider historic carriage under the first statutory factor.
• We conclude that a television broadcast station that becomes eligible for mandatory satellite carriage by operation of a market modification may elect retransmission consent or mandatory carriage with respect to a satellite carrier within 30 days after the market determination. We conclude that a satellite carrier must commence carriage within 90 days after receiving the station's request for carriage.
• We conclude that it is
• We conclude that, if a satellite carrier can provide the station at issue in a market modification request to only part of a new community, then it must do so.
• We conclude that the satellite carrier has the burden to demonstrate that the resulting carriage from a market modification is technically and economically infeasible.
• We will allow satellite carriers to demonstrate spot beam coverage infeasibility by providing a detailed certification under penalty of perjury.
• We conclude that a satellite carrier must raise any technical or economic impediments either in the market modification proceeding or prior to such proceeding in response to a prospective petitioner's inquiry about feasibility of carriage resulting from a contemplated market modification.
• We establish a process that will allow a prospective petitioner to obtain a certification from a satellite carrier about whether or not (and to what extent) it is technically and economically feasible for the carrier to provide the station to a new community. We will not grant a market modification petition if such grant could not create a new carriage obligation for the carrier at that time due to a finding of technical or economic infeasibility.
• We recognize that there may be other bases than spot beam coverage for a carrier to assert that carriage would be technically or economically infeasible and will review these assertions on a case-by-case basis.
• We define a “satellite community” as a county for purposes of a satellite market modification. We retain our existing definition of a “cable community” for purposes of a cable market modification.
5. The STELAR, enacted December 4, 2014, is the latest in a series of statutes that have amended the Communications Act and Copyright Act to set the parameters for the satellite carriage of television broadcast stations. The 1988 Satellite Home Viewer Act (SHVA) first established a “distant” statutory copyright license to enable satellite
6. Section 338 of the Communications Act authorizes satellite carriage of local broadcast stations into their local markets, which is called “local-into-local” service.
7. STELAR section 102, which adds section 338(l) of the Act, creates a satellite market modification regime very similar to that in place for cable, while adding provisions to address the unique nature of satellite television service.
8. Section 338(l) states that, in ruling on requests for market modifications for purposes of satellite carriage, the Commission must afford particular attention to the value of localism by taking into account the following five factors:
(1) Whether the station, or other stations located in the same area—(a) have been historically carried on the cable system or systems within such community; and (b) have been historically carried on the satellite carrier or carriers serving such community;
(2) Whether the television station provides coverage or other local service to such community;
(3) Whether modifying the local market of the television station would promote consumers' access to television broadcast station signals that originate in their State of residence;
(4) Whether any other television station that is eligible to be carried by a satellite carrier in such community in fulfillment of the requirements of this section provides news coverage of issues of concern to such community or provides carriage or coverage of sporting and other events of interest to the community; and
(5) Evidence of viewing patterns in households that subscribe and do not subscribe to the services offered by multichannel video programming distributors within the areas served by such multichannel video programming distributors in such community.
9. The STELAR, however, provides a unique exception applicable only in the satellite context, providing that a market modification:
Also unique to satellite, the STELAR provides that a market modification will not have “any effect on the eligibility of households in the community affected by such modification to receive distant signals pursuant to section 339 [of the Act].”
10. On March 26, 2015, we began this proceeding by issuing a Notice of Proposed Rulemaking (NPRM).
11. Consistent with the STELAR's goal of regulatory parity, we largely model the satellite market modification process on the existing process for cable and adopt our proposal to amend section 76.59 of our rules—the current cable market modification rule—to apply in both the cable and satellite contexts.
12. We conclude that the involved broadcaster, satellite carrier and county government may file a satellite market modification petition.
13. Section 338(l)(1) of the Act permits the Commission to modify a local television market “following a written request,” but does not specify the appropriate party to make such requests.
14. Upon further consideration pursuant to section 102(d) of the STELAR, we conclude that we will better effectuate the purposes of the STELAR (to promote consumer access to in-state programming) by also permitting a county governmental entity (such as a county board, council, commission or other equivalent subdivision) to file a satellite market modification petition, as advocated by some commenters.
15. We acknowledge that we are implementing a procedural aspect of section 338(l)(1) in a manner that differs from our implementation of section 614(h)(1)(C)(i), despite the nearly identical language of the two provisions.
16. We adopt our proposal to require petitioners (
17. As discussed above, the purpose of market modification is to permit adjustments to a particular station's local television market (which is initially defined by the DMA in which it is located) to better serve the value of localism by ensuring that satellite subscribers receive the broadcast stations most relevant to them.
18. We conclude that the in-state factor favors any market modification that would promote consumers' access to an in-state station.
19. We adopt our tentative conclusion that the new in-state factor is not intended to bar a market modification simply because it would not result in increased consumer access to an in-state station's programming.
20.
(1) A map or maps illustrating the relevant community locations and geographic features, station transmitter sites, cable system headend or satellite carrier local receive facility locations, terrain features that would affect station reception, mileage between the community and the television station transmitter site, transportation routes and any other evidence contributing to the scope of the market;
(2) Noise-limited service contour maps (for full-power digital stations) or protected contour maps (for Class A and low power television stations)
(3) Available data on shopping and labor patterns in the local market.
(4) Television station programming information derived from station logs or the local edition of the television guide.
(5) Cable system or satellite carrier channel line-up cards or other exhibits establishing historic carriage, such as television guide listings.
(6) Published audience data for the relevant station showing its average all day audience (
(7) If applicable, a statement that the station is licensed to a community within the same state as the relevant community.
21. In addition, we adopt our proposal to revise section 76.59(b)(2) of the rules to add a reference to the digital noise-limited service contour (NLSC), which is the relevant service contour for a full-power station's digital signal.
22. Consistent with the cable carriage rule, we adopt our proposals that satellite market modification requests that do not include the required evidence be dismissed without prejudice and that they may be supplemented and re-filed at a later date with the appropriate filing fee.
23. We adopt our tentative conclusion that market modifications in the satellite
24. We also adopt our tentative conclusion that we will consider market modification requests separately in the cable and satellite contexts.
25. Finally, we adopt our tentative conclusion that market modification requests will apply only to the satellite carrier or carriers named in the request.
26.
27.
28. We reject DISH's proposal to mandate a must-carry election for the remainder of the current election cycle because it directly contravenes section 325 of the Act and would be inconsistent with our satellite carriage rules.
29. We also adopt our tentative conclusion that a satellite carrier must commence carriage within 90 days of receiving the request for carriage from the television broadcast station.
30. We adopt our proposal to codify the language of section 338(l)(3), which provides that “[a] market determination . . . shall not create additional carriage obligations for a satellite carrier if it is not technically and economically feasible for such carrier to accomplish such carriage by means of its satellites in operation at the time of the determination.”
31. The NPRM sought comment on the types of technical or economic impediments contemplated by section 338(l)(3) that would make satellite carriage infeasible in a new community.
32. We are persuaded by the satellite carriers that if the relevant spot beam does not cover the new community, then it is not technically and economically feasible for the carrier to provide the station to such new community.
33. We recognize that there may be other technical or economic impediments to carriage that could qualify for the infeasibility exception. For example, DISH explains that it provides local broadcast stations from spot beams on several satellites at a variety of different orbital locations and that each subscriber's satellite dish must be pointed and configured to receive signals from a particular orbital location.
34.
35. As discussed above, the statute requires a satellite carrier to carry a station pursuant to a market modification, unless it is not technically and economically feasible for the carrier to do so. Given the relatively large size of many counties, we conclude that it would be a disservice to consumers, and would not fully effectuate the mandate of the satellite market modification provisions of the STELAR, to presume that partial carriage to a county-defined community is
36. Based on the record, we expect the vast majority of satellite carrier claims of infeasibility will be related to insufficient spot beam coverage. Because of the technical complexities involved in demonstrating spot beam coverage infeasibility, including the use of proprietary confidential information, we establish a streamlined process for carriers to demonstrate spot beam coverage infeasibility through the use of detailed certifications under penalty of perjury, based on a proposal by DIRECTV. Because of the limited record with respect to other possible claims of infeasibility, and our expectation that such other claims will be relatively rare, we do not at this time establish a detailed certification process for demonstrating other types of infeasibility. Instead, carriers will be required to demonstrate other types of infeasibility through the submission of evidence specifically demonstrating the technical or economic reason that carriage is infeasible. Although prospective petitioners will have two options for seeking a Commission determination about the carrier's claim of infeasibility (
37. The NPRM tentatively concluded that the satellite carrier has the burden to demonstrate technical or economic infeasibility and invited comment on the type of evidence needed to prove such infeasibility claims.
38. We adopt our tentative conclusion that the statute places the burden on satellite carriers to demonstrate infeasibility if they assert that carriage of a station in a new community would be technically or economically infeasible. Our conclusion is consistent with the legislative history that claims of infeasibility be “well substantiated and carefully examined by the [Commission].”
39. We adopt a certification process for carriers to demonstrate spot beam coverage infeasibility that should avoid imposing undue expense on, or compromising the confidential business information of, the satellite carriers while also providing the Commission with an appropriate basis for making market modification determinations. We conclude that a detailed certification submitted under penalty of perjury would satisfy the carrier's burden under the statute to substantiate their claims of insufficient spot beam coverage and allow us to carefully examine such claims of infeasibility.
40.
41.
42. We will consider on a case-by-case basis other claims of technical or economic infeasibility, such as DISH's
43. We will resolve disputes about carrier claims of infeasibility either in the context of a market modification proceeding or, at a prospective petitioner's option, in a separate proceeding before a market modification petition is filed. Thus, a prospective petitioner has two options. First, a prospective petitioner may file its market modification petition. In such cases, a satellite carrier would raise any claim of infeasibility in response to the petition and we would make a determination about the validity of such claim (and would not further process a petition for which the resulting carriage is infeasible). We recognize that prospective petitioners may want to know about carrier's claims of infeasibility, and may want a Commission determination about the validity of such claim, before filing a market modification petition. Therefore, a prospective petitioner's second option is to initiate the pre-filing coordination process (described below). Through this process, a prospective petitioner would request information from a carrier about infeasibility and a carrier would raise any claim of infeasibility in response to this request in the form of a certification. A carrier claiming spot beam coverage infeasibility must provide the detailed certification (described above). For all other claims of infeasibility, the certification provided for here is for the purpose of a carrier to notify the prospective petitioner about the carrier's claim of infeasibility prior to a petition being filed. The prospective petitioner can then decide whether it would like to file a special relief petition to obtain a Commission determination about the validity of the carrier's claim of infeasibility.
44. The NPRM tentatively concluded that a satellite carrier must raise any technical or economic impediments in the market modification proceeding.
45. Most commenters support addressing satellite carrier claims of infeasibility before a broadcaster files a prospective market modification petition;
46. We conclude that it is most efficient and practical for stakeholders to consider and resolve satellite carrier claims of technical or economic infeasibility before petitioners go through the time and expense of seeking a prospective market modification and before the Commission uses administrative resources to evaluate the merits of a prospective market modification petition under the five statutory factors. Therefore, we slightly modify our tentative conclusion and proposal.
47.
48. For purposes of determining a reasonable amount of time for a carrier to respond to a request for a feasibility certification, we find a carrier should generally respond within 45 days of receipt of a prospective petitioner's written request;
49. The NPRM proposed that a meritorious market modification request would be granted even if such grant would not create a new carriage obligation at that time, for example, due to a finding of technical or economic infeasibility.
50. We conclude that we will not grant a market modification petition that could not create a new carriage obligation at that time due to a finding of technical or economic infeasibility. We find that our conclusion is more consistent with the statute's requirement that a market modification “shall not create additional carriage obligations for a satellite carrier” if it is infeasible “at the time of the determination.”
51. We adopt our proposal to codify the language of section 338(l)(5), which provides that “[n]o modification of a commercial television broadcast station's local market pursuant to this subsection shall have any effect on the eligibility of households in the community affected by such modification to receive distant signals pursuant to section 339, notwithstanding subsection (h)(1) of this section.”
52. The Communications Act and copyright laws set out two key restrictions on a satellite subscriber's eligibility to receive “distant” (out-of-market) signals.
53. The NPRM sought comment on whether section 338(l)(5) also means that the deletion of a local station from a local television market by operation of a market modification would not make otherwise ineligible subscribers now eligible to receive a distant station of the same network.
54. For purposes of a satellite market modification, we define a “satellite community” as a county, which is supported by all commenters on this issue.
55. In the NPRM, as directed by the STELAR,
56.
57. We find this approach preferable to defining a “satellite community” on a cable community
58.
59. As required by the Regulatory Flexibility Act of 1980, as amended (RFA),
60. This Report and Order adopts rules to implement section 102 of the Satellite Television Extension and Localism Act (STELA) Reauthorization Act of 2014 (“STELA Reauthorization Act” or “STELAR”).
61. No public comments were filed in response to the IRFA.
62. Pursuant to the Small Business Jobs Act of 2010, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments.
63. The RFA directs agencies to provide a description of and an estimate of the number of small entities to which the rules will apply.
64.
65.
66.
67.
68.
69.
70.
71.
72.
73.
74.
75. In addition, the SBA's placement of Cable Television Distribution Services in the category of Wired Telecommunications Carriers is applicable to cable-based Educational Broadcasting Services. Since 2007, these services have been defined within the broad economic census category of Wired Telecommunications Carriers,
76.
77.
78. Competitive Local Exchange Carriers (CLECs), Competitive Access Providers (CAPs), Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. These entities are included in the SBA's economic census category, Wired Telecommunications Carriers.
79.
80. Apart from the U.S. Census, the Commission has estimated the number of licensed commercial television stations to be 1,390 stations.
81. We note, however, that in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations
82.
83. The Report and Order revises section 76.59 of the rules to apply also to the satellite television context. The new satellite rules permit commercial television broadcast stations, satellite carriers and county governments to file petitions seeking to modify a commercial television broadcast station's local television market for purposes of satellite carriage rights.
84. The Report and Order establishes a process that will allow a prospective petitioner (
85. The adopted rules require a satellite carrier to provide a detailed and specialized certification to demonstrate its claim that satellite carriage resulting from a market modification would be technically or economically infeasible due to insufficient spot beam coverage.
86. The RFA requires an agency to describe the steps the agency has taken to minimize the significant economic impact on small entities consistent with the stated objectives of applicable statutes, including a statement of the factual, policy, and legal reasons for selecting the alternative adopted in the final rule and why each one of the other significant alternatives to the rule considered by the agency which affect the impact on small entities was rejected.
87. Consistent with the statute's goal of promoting regulatory parity between cable and satellite service, the Report and Order applies the existing cable market modification rules to the satellite context, while adding provisions to the rules to address the unique nature of satellite television service. Therefore, the adopted rules for the first time allow a commercial television broadcast station to request a modification of its local television market for purposes of satellite carriage. Small TV stations that choose to file satellite market modification petitions must comply with the associated filing and evidentiary requirements (explained in section D of the FRFA); however, the filing of such petitions is voluntary. In addition, small TV stations may want to respond to a petition to modify its market (or the market of a competitor station) filed by a satellite carrier or a competitor station; however, there are no standardized evidentiary requirements associated with such responsive pleadings. Through a market modification process, a small TV station may gain or lose carriage rights with respect to a particular community, based on the five statutory factors, to better reflect localism.
88. In the IRFA, we invited small TV stations to comment on whether they are more or less likely, on the whole, to benefit from market modifications.
89. Unique to satellite market modifications, the STELAR provides that a satellite carrier is not required to carry a station pursuant to a market modification if it is not technically and economically feasible for the carrier to do so.
90. The adopted rules, for the first time, allow satellite carriers to request market modifications. The adopted rules also allow satellite carriers to assert claims of infeasibility by certification, which will minimize the burden on them, although the Commission may require satellite carriers to provide documentation upon request.
91. The Commission will send a copy of the Report and Order, including this FRFA, in a report to be sent to Congress pursuant to the Congressional Review Act.
92. This document contains modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA).
93. The Commission will send a copy of this Report and Order in a report to be sent to Congress and the Government Accountability Office, pursuant to the Congressional Review Act.
94. Accordingly,
95.
96.
Broadcast television, Cable television, Satellite television.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 76 as follows:
47 U.S.C. 151, 152, 153, 154, 301, 302, 302a, 303, 303a, 307, 308, 309, 312, 315, 317, 325, 338, 339, 340, 341, 503, 521, 522, 531, 532, 534, 535, 536, 537, 543, 544, 544a, 545, 548, 549, 552, 554, 556, 558, 560, 561, 571, 572, 573.
(gg)
(2) For purposes of the market modification rules (see § 76.59), a county.
(a) * * *
(3)
(a) The Commission, following a written request from a broadcast station, cable system, satellite carrier or county government (only with respect to satellite modifications), may deem that the television market, as defined either by § 76.55(e) or § 76.66(e), of a particular commercial television broadcast station should include additional communities within its television market or exclude communities from such station's television market. In this respect, communities may be considered part of more than one television market.
(b) * * *
(1) A map or maps illustrating the relevant community locations and
(2) Noise-limited service contour maps (for full-power digital stations) or protected contour maps (for Class A and low power television stations) delineating the station's technical service area and showing the location of the cable system headends or satellite carrier local receive facilities and communities in relation to the service areas.
Service area maps using Longley-Rice (version 1.2.2) propagation curves may also be included to support a technical service exhibit.
(5) Cable system or satellite carrier channel line-up cards or other exhibits establishing historic carriage, such as television guide listings.
(6) Published audience data for the relevant station showing its average all day audience (
(7) If applicable, a statement that the station is licensed to a community within the same state as the relevant community.
(d) A cable operator or satellite carrier shall not delete from carriage the signal of a commercial television station during the pendency of any proceeding pursuant to this section.
(e) A market determination under this section shall not create additional carriage obligations for a satellite carrier if it is not technically and economically feasible for such carrier to accomplish such carriage by means of its satellites in operation at the time of the determination.
(f) No modification of a commercial television broadcast station's local market pursuant to this section shall have any effect on the eligibility of households in the community affected by such modification to receive distant signals from a satellite carrier pursuant to 47 U.S.C. 339.
(d) * * *
(6)
(e)
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of regulatory guidance.
FMCSA issues regulatory guidance concerning the editing of records created by automatic on-board recording devices (AOBRDs). The guidance makes clear that, within certain limits, a driver must be allowed to review his or her AOBRD records, annotate and correct inaccurate records, enter any missing information, and certify the accuracy of the information. The AOBRD must retain the original entries, and reflect the date, time, and name of the person making edits to the information. Drivers' supervisors may request that a driver make edits to correct errors, but the driver must accept or reject such requests. Driving time may not be edited except in the case of unidentified or team drivers, and when driving time was assigned to the wrong driver or no driver. All prior Agency interpretations and regulatory guidance on this subject, including memoranda and letters, may no longer be relied upon to the extent they are inconsistent with this guidance.
This regulatory guidance is effective October 2, 2015.
Mr. Thomas Yager, Chief, Driver and Carrier Operations Division, Federal Motor Carrier Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, phone (202) 366–4325, email
The Motor Carrier Safety Act of 1984 (Pub. L. 98–554, Title II, 98 Stat. 2832, October 30, 1984) (1984 Act), as amended (codified at 49 U.S.C. 31136(a)) authorizes the Secretary of Transportation to regulate commercial motor vehicles (CMVs) and equipment, and the drivers and motor carriers that operate them. Section 211 of the 1984 Act also gives the Secretary broad power to “prescribe recordkeeping and reporting requirements” and to “perform other acts the Secretary considers appropriate” (49 U.S.C. 31133(a)(8) and (10)). The Administrator of FMCSA has been delegated authority under 49 CFR 1.87(f) to carry out the functions vested in the Secretary by 49 U.S.C. chapter 311, subchapters I and III, relating to CMV programs and safety regulation.
Motor carriers began to use automated hours-of-service (HOS) recording devices in the mid-1980s to replace paper records. The Federal Highway Administration, the agency then responsible for the motor carrier safety regulations, published a final rule in 1988 that defined Automatic On Board Recording Devices (AOBRDs) and set forth performance standards for their use (53 FR 38670, September 30, 1988, codified at 49 CFR 395.15).
Question 2 of the regulatory guidance for § 395.15 prohibits CMV drivers from “amending” AOBRD records of duty status (RODS) during a trip; the guidance was published on April 4, 1997 (65 FR 16370, at 16426). The reason for the prohibition—“If drivers, who use automatic on-board recording devices, were allowed to amend their record of duty status while in transit,
Over 25 years have passed since the AOBRD rule was published. Many systems now allow electronic transfer of data from in-cab units to a support system. Thousands of motor carriers and hundreds of thousands of drivers are using HOS recording systems that far exceed the minimum performance requirements for AOBRDs. Information technology systems can place very precise controls over the data revision;
FMCSA acknowledges that drivers need to be able to make legitimate corrections to their electronic AOBRD records. For example, if a driver erroneously enters “off duty” when he or she actually is on duty/not driving, and realizes this error later, under current guidance the driver would have to relay this information to a supervisory motor carrier official, and that official would need to edit the driver's record. In another example, a driver might need to enter on-duty activity performed when the driver was away from the CMV.
With the steady increase in CMV drivers using AOBRDs, and the ability of software to note edits without deleting the original record, the need for a driver to make this request through another party is no longer necessary and is becoming increasing less viable. Therefore, as long as the AOBRD record reflects both the original entry and the revised entry, along with information on who made the revision, the date and time, and the reason (in the Remarks sections, see current Question 2 to § 395.15), FMCSA will now allow these edits.
However, FMCSA continues to prohibit drivers from editing records related to driving time, except in limited circumstances. Driving time may not be edited except in the case of unidentified or team drivers, and when driving time was assigned to the wrong driver or no driver. Such time may be reassigned to the correct driver. Staff of the motor carrier or its electronic systems provider may request that a driver make edits to correct errors. The driver must accept or reject such requests and the AOBRD must record the transaction. If the driver edits the record based on the request, he or she must re-submit and re-certify the corrected record.
In all instances of editing, the AOBRD must retain the original entries, and reflect the date, time, and name of the person making any edit. The motor carrier must also retain both the original and edited record of duty status.
The Agency revises Question 2 of the Regulatory Guidance for § 395.15 to address all of these issues.
“
(1) Within certain limits, a driver must be allowed to review his or her AOBRD records, annotate and correct inaccurate records, enter any missing information, and certify the accuracy of the information.
(2) The AOBRD must retain the original entries, and reflect the date and time of an edit, and name of the person making the edit. If the driver has already “certified” the entries for the duty period, he or she must re-certify the edited version, which must be transmitted to the carrier.
(3) “Driving time” may not be edited except in the case of unidentified or team drivers, and when driving time was assigned to the wrong driver or no driver. Such time may be reassigned to the correct driver.
(4) After reviewing incoming records, drivers' supervisors may request that a driver make edits to correct errors. The driver must accept or reject such requests and the AOBRD must record the transaction. If the driver annotates the record based on the request, he or she must re-submit and re-certify the corrected record.”
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; accountability measures.
NMFS implements accountability measures (AMs) for the red grouper recreational sector in the exclusive economic zone (EEZ) of the Gulf of Mexico (Gulf) for the 2015 fishing year through this temporary rule. NMFS projects the recreational sector will reach the recreational annual catch limit (ACL) by October 7, 2015. Therefore, the red grouper recreational sector in the Gulf EEZ will close at 12:01 a.m., local time, October 8, 2015. This closure is necessary to protect the Gulf red grouper resource.
The recreational sector closure for red grouper in the Gulf EEZ is effective at 12:01 a.m., local time, October 8, 2015, until January 1, 2016.
Rich Malinowski, NMFS Southeast Regional Office, telephone: 727–824–5305, email:
The reef fish fishery of the Gulf, which includes red grouper, is managed under the Fishery Management Plan for the Reef Fish Resources of the Gulf of Mexico (FMP). The FMP was prepared by the Gulf of Mexico Fishery Management Council and is implemented by NMFS through regulations at 50 CFR part 622 under the authority of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act). All weights specified in this rule are in gutted weight.
In accordance with regulations at 50 CFR 622.41(e)(2)(i), if red grouper recreational landings reach or are projected to reach the recreational ACL and without regard to overfished status, NMFS will close the red grouper recreational sector in the Gulf EEZ for the remainder of the fishing year by filing a notification to that effect with the Office of the
During the recreational sector closure, the bag and possession limits for red grouper in or from the Gulf EEZ are zero. These bag and possession limits also apply in the Gulf on board a vessel for which a valid Federal charter vessel/headboat permit for Gulf reef fish has been issued, without regard to where such species were harvested,
The recreational sector for red grouper will reopen on January 1, 2016, the beginning of the 2016 recreational fishing season.
The Regional Administrator, Southeast Region, NMFS, has determined this temporary rule is necessary for the conservation and management of Gulf red grouper and is consistent with the Magnuson-Stevens Act and other applicable laws.
This action is taken under 50 CFR 622.41(e)(2)(i) and is exempt from review under Executive Order 12866.
These measures are exempt from the procedures of the Regulatory Flexibility Act because the temporary rule is issued without opportunity for prior notice and comment.
This action responds to the best scientific information available. The Assistant Administrator for Fisheries, NOAA (AA), finds that the need to immediately implement this action to close the red grouper recreational sector constitutes good cause to waive the requirements to provide prior notice and opportunity for public comment on this temporary rule pursuant to the authority set forth in 5 U.S.C. 553(b)(B), because such procedures are unnecessary and contrary to the public interest. Such procedures are unnecessary because the rule establishing the closure provisions was subject to notice and comment, and all that remains is to notify the public of the closure. Such procedures are contrary to the public interest because of the need to immediately implement this action to protect red grouper. Prior notice and opportunity for public comment would require time and could potentially allow the recreational sector to exceed the recreational ACL.
For the aforementioned reasons, the AA also finds good cause to waive the 30-day delay in the effectiveness of this action under 5 U.S.C. 553(d)(3).
16 U.S.C. 1801
Small Business Administration.
Proposed rule.
The U.S. Small Business Administration (SBA) has determined that changing conditions in the American economy and a constantly evolving small business community compel it to seek ways to improve program efficiency for its Surety Bond Guarantee (“SBG”) Program, and the business loan programs consisting of the 7(a) Loan Program, the Business Disaster Loan Programs (collectively, the Economic Injury Disaster Loans, Reservist Injury Disaster Loans, Physical Disaster Business Loans, Immediate Disaster Assistance Program loans), the Microloan Program, and the Development Company Program (the “504 Loan Program”). As a result, SBA proposes to simplify guidelines for determining affiliation for eligibility based on size as it relates to these programs. This proposed rule would redefine affiliation for all five Programs, thereby simplifying eligibility determinations.
SBA must receive comments to the proposed rule on or before December 1, 2015.
You may submit comments, identified by RIN: 3245–AG73 by any of the following methods:
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SBA will post all comments on
Linda Reilly, Chief, 504 Loan Program, Office of Financial Assistance, Office of Capital Access, Small Business Administration, 409 Third Street SW., Washington, DC 20416; telephone 202–205–9949.
Executive Order 13563, “Improving Regulation and Regulatory Review,” provides that agencies “
The business loan programs authorized by the Small Business Act (Act), 15 U.S.C. 631
The 7(a) Loan Program's main purpose is to help eligible small businesses obtain credit when they cannot obtain credit elsewhere. The Agency recognizes that the 7(a) Loan Program is an important engine for job creation. The 7(a) Loan Program provides financing for general business purposes through the guaranty of loans made by participating private sector lenders. Currently, there are approximately 4,500 lenders participating in the 7(a) Loan Program with approximately $66 billion in total SBA guarantees outstanding.
Through its Business Disaster Loan Programs, SBA provides low-interest disaster loans to businesses of all sizes and private non-profit organizations. These loans can be used to restore, repair or replace disaster damaged assets and working capital as a result of a declared disaster. The loans are made directly by SBA and repayment terms are determined on a case-by-case basis, based upon each borrower's satisfactory credit and ability to repay.
The Microloan Program provides loans up to $50,000 to help small businesses and certain nonprofit childcare centers. The average microloan is about $13,000. SBA lends funds to specially-designated intermediary lenders, which are primarily nonprofit community-based organizations with experience in lending as well as management and technical assistance. These intermediaries administer the Microloan Program for eligible borrowers lending directly to them. Each intermediary
The core mission of the 504 Loan Program is to provide long-term fixed asset financing to small businesses for the purchase or improvement of land, buildings, and major equipment purchases, to facilitate the creation of jobs and to stimulate local economic development. A Certified Development Company (“CDC”) is a nonprofit corporation, with the exception of selected for-profit CDCs grandfathered into the 504 Loan Program that promotes economic development within its community through 504 loans. Under the 504 Loan Program, loans are made to small business applicants by CDCs, which are funded through sales of debentures, which are guaranteed 100% by the SBA. There are over 260 CDCs nationwide, each with a defined Area of Operations covering a specific geographic area.
Pursuant to the SBG Program, SBA guarantees bid, payment and performance bonds for small and emerging contractors who cannot obtain surety bonds through regular commercial channels. SBA's guarantee is an agreement between a Surety and SBA that SBA will cover a certain percentage of the Surety's loss should a contractor default on the underlying contract. Specifically, SBA guarantees Sureties participating in the program against a portion of their losses incurred and paid as a result of a breach of the terms of a bid bond, final bond or ancillary bond, on any eligible contract. SBA's guarantee gives Sureties an incentive to provide bonding for small businesses and thereby assists small businesses in obtaining greater access to contracting opportunities which require these bonds as a condition for obtaining the contract.
The Agency, in compliance with Executive Order 13132, previously requested and received public comments on the Rules of Affiliation as part of a Notice of Proposed Rule Change (February 25,2013) to update the business loan program . SBA received and reviewed comments and met with industry participants to identify best practices based on the feedback. SBA received 54 comments regarding Affiliation Rules in general support of the proposed change. Ten comments further suggested modification and clarification of the proposal. The most consistent concern expressed was the need in that proposal to require a borrower to prepare a document that qualified each potential affiliation under SBA rules. SBA has determined that the modifications proposed herein fully incorporate previous input.
Below is a summary of the proposed changes regarding determining size and affiliation of applicants to Business Loan Programs and SBG Programs. The Agency requests comments on all of the proposed regulatory revisions in this rule and on any related issues affecting the programs.
The Act defines a small business concern as “one which is independently owned and operated and which is not dominant in its field of operation . . .” 15 U.S.C. 632(a)(1). In order to be eligible for an SBA guaranteed loan, an applicant must be a small business pursuant to size standards established by SBA through regulation. 13 CFR 120.100. In general, to be considered small, concerns must meet the particular size standard that corresponds to a six-digit North American Industrial Classification System (NAICS) code. Each size standard is stated in terms of either gross revenue receipts or number of employees, and in limited cases a basis other than receipts or employees (
SBA's regulations in 13 CFR 121.103 set forth the Agency's principles of affiliation and explain when an individual or an entity is an affiliate of another individual or entity. SBA's affiliation rules generally apply to all SBA programs for which a business must qualify as small, including SBA's government contracting and business development programs, small business loan programs and grant programs. Generally, affiliation exists when one business controls or has the power to control another or when a third party (or parties) controls or has the power to control both businesses. Control may arise through ownership, management, or other relationships or interactions between parties. SBA may also find affiliation based on “negative control,” which includes instances where a minority shareholder has the ability, under the concern's charter, by-laws, or shareholder's agreement, to prevent a quorum or otherwise block action by the board of directors or shareholders.
Upon review of the statutory provisions for the Business Loan Programs, the purpose behind these programs, and the overall goals of simplification and maximization of benefits for small businesses, SBA is proposing amendments to the current affiliation rules with respect to these programs. SBA believes that, in general, a majority of the principles of affiliation set forth in § 121.103 apply to the Business Loan Programs. However, SBA believes that certain affiliation principles in their current form are more applicable to determining size with respect to federal contracting and subcontracting (where SBA is trying to ensure only eligible small businesses win federal contracts expressly intended for small businesses) and are not necessarily applicable to business loan applicants. SBA seeks to create simple, bright-line tests for Business Loan Program applicants when determining eligibility with respect to size and affiliation, and streamline requirements for determining whether a business is small for purposes of receiving SBA loan assistance. In addition to clarification, this will reduce costs of an application for the loan applicant and its participating lender.
SBA previously amended the affiliation rules for the Small Business Innovation Research (SBIR) and Small Business Technology Transfer (STTR) programs. Small Business Size Regulations, Small Business Innovation Research (SBIR) Program and Small Business Technology Transfer (STTR) Program, Proposed Rule 77 FR 28520 (May 15, 2012) and Final Rule 77 FR 76215 (December 27, 2012). SBA determined that the general affiliation rules did not apply to the SBIR and STTR programs due to the specialized nature of the program (research and development) and the type of small business that applies for the program (innovative start-ups and research businesses). The amended affiliation rules for the SBIR and STTR programs have helped increase opportunities for small businesses within these programs, reduced burdens for SBIR/STTR eligibility, and streamlined the programs' processes.
SBA is proposing similar changes for the Business Loan Programs. In the SBIR revision R&D costs were cited, as an impediment to program participation.
In the new § 121.301(f), SBA proposes to refine the principles of “affiliation” for the purpose of the Business Loan Programs. Proposed new paragraph (f)(1) sets forth the affiliation principles based on percentage of ownership. With respect to affiliation based on control through ownership, SBA's current affiliation rule (
SBA's current affiliation rule states that if two or more persons own, control or have the power to control less than 50% of the concern's voting interests, and the interests are equal, or approximately equal in size, and the aggregate of these minority holdings is large as compared with any other holding, SBA presumes these owners have control of the business concern.
For purposes of the Business Loan Programs, however, SBA considers that in all of these instances, the holdings are so diffused that control would always rest with the small business concern's Board of Directors or management since it is that unit of the organization that is truly running the business.
Therefore, in § 121.301(f)(1), SBA proposes that for the business loan programs, SBA will determine control exists based on ownership when:
(1) A person owns or has the power to control more than 50% of the voting equity of a concern; or
(2) if no one person owns or has the power to control more than 50% of the voting equity of the concern, SBA would deem the small business to be controlled by either the President, Chairman of the Board, or Chief Executive Officer (CEO) of the concern (or other officers, managing members, partners, or directors who control the management of the concern).
SBA refers to ownership or equity without designating that it is “stock” ownership because not all business loan applicants are corporations with ownership determined through stock issuance.
In paragraph (f)(2) of § 121.301 SBA proposes no changes to the existing principles regarding affiliation arising under stock options, convertible securities, and agreements to merge currently found in § 121.103(d).
In § 121.301(f)(3), SBA proposes to utilize the same principles of affiliation for common management that are set forth in § 121.103. However, SBA has amended the language here to clarify the different types of managers or management.
In § 121.301(f)(4), SBA is proposing to use a different affiliation rule concerning “identity of interest,” 13 CFR 121.103(f), for the purposes of the Business Loan Programs and Surety Bond Program. Currently under identity of interest, SBA determines affiliation between individuals or firms when these individuals or firms have identical (or substantially identical) business or economic interests, unless they can demonstrate to SBA otherwise. Family members, persons with common investments, or firms that are economically dependent through contractual (or other) relationships, are among those treated this way. For the Business Loan Programs and the Surety Bond Guarantee Program, SBA proposes to presume that there is an identity of interest only between close relatives as defined in § 120.10. SBA proposes to retain this affiliation principle based on the customary understanding that close relatives have an overarching and close alignment of interests and a strong financial incentive to participate in and support family businesses. In the proposed rule, SBA states that it may determine affiliation based on an identity of interest for other reasons. Upon such a determination, the applicant may make a case to rebut the SBA decision.
In § 121.301(f)(5), SBA proposes to make one change to the existing language affecting affiliation based on franchise and license agreements currently found in § 121.103(i). Under current § 121.103(i), SBA must review franchise agreements as they pertain to both the applicant and any affiliates of the applicant. If the applicant has an affiliate that operates under a franchise or license agreement, SBA would be required to review the franchise agreements as it pertains to the affiliate to determine the size of the applicant. Therefore, if the affiliate entity was operating under a franchise agreement that gave the franchisor control over the affiliate franchisee, SBA would determine that the affiliate entity is affiliated with the franchisor. Based on this analysis, when the size of the affiliate entity and the franchisor are combined with the size of the applicant, the applicant may be considered other than small. The proposed regulation would limit franchise or license agreement reviews to the immediate loan applicant, and not consider other agreements in place with affiliated entities.
The proposed change would revise the first sentence of current § 121.103(i) to read as follows: “The restraints imposed on a franchisee or licensee by its franchise or license agreement related to standardized quality, advertising, accounting format and other similar provisions, generally will not be considered in determining whether the franchisor or licensor is affiliated with an applicant franchisee or licensee, provided the applicant franchisee or licensee has the right to profit from its efforts and bears the risk of loss commensurate with ownership.” The revised language would ensure that a review of the applicant only takes into consideration the size of the applicant and its direct affiliate and not the relationship of the affiliate to any franchisor or licensor. With this change, SBA will still have to consider the size of any affiliate entities, but will not be required to examine any franchisor/franchisee relationship of the affiliated entity. The remaining language will stay the same and still require a review of a franchise/license agreement as it pertains to the applicant.
SBA proposes to retain in § 121.301(f)(6) a finding of affiliation based on the totality of circumstances currently found in § 121.103(a)(5). This provides SBA with the ability to consider all contributing factors that could potentially impact the determination that the applicant business is small. Therefore, notwithstanding the Agency's goal to provide bright line eligibility criteria regarding affiliation determinations for loan eligibility, the Agency recognizes that it must prevent instances where large entities participate in a small business loan program, and application
SBA proposes to incorporate the exceptions to affiliation set forth in section § 121.103(b) in new § 121.301(f)(8). SBA does not propose any changes to these exceptions to affiliation.
Finally, SBA proposes to eliminate from the Business Loan Programs several current bases of affiliation that apply in federal contracting. Specifically, SBA proposes to eliminate applying affiliation based on a newly organized concern (
With respect to joint ventures, these partnerships are formed when two or more businesses combine their efforts in order to perform on a federal contract or receive other contract assistance. SBA does not consider this affiliation based on joint venture to be of significant concern to the Business Loan Programs because a loan to any joint venture will require all members of the joint venture to accept full responsibility for loan guarantee liability. Also, agency records indicate that applicants for assistance under SBA Business Loan Programs are rarely, if ever, joint ventures, and, therefore, this provision is unnecessary. For the Surety Bond Guarantee Program, the guarantee is on the bond, not a contract. Any joint venture project where the applicant small business requests a guarantee would also be subject to guaranteeing the obligation.
SBA also proposes to omit the discussion of “negative control” as a stand-alone factor in determining affiliation for the purpose of loan eligibility. As noted above, pursuant to 13 CFR 121.103(a)(3), negative control may exist where a minority shareholder can block certain actions by the board of directors. Under this proposal for loan eligibility, SBA will consider all factors when making an affiliation determination based on the totality of the circumstances.
SBA considers that this proposed definition of affiliation used in determining the applicant's loan eligibility, while continuing SBA's ability to review totality of circumstances, adequately ensures that the loan programs are provided appropriately to small businesses.
Under this program, SBA provides surety bond guarantees for qualified small and emerging businesses, in direct partnership with surety companies. SBA helps small contractors by guaranteeing bid, performance, and payment bonds issued by participating surety companies for contracts up to $6.5 million so as to allow the qualified small contractor to obtain a contract.
SBA's SBG Program is most commonly used for non-federal contracts. SBA regularly guarantees bonds for eligible small business on state, local and private entity contracts. State and local jurisdictions may not have the same size and affiliation rules as SBA. SBA has proposed to amend the definition of “Affiliate” in 13 CFR 115.10 to explain that the term is defined in the proposed 13 CFR 121.301 (the loan programs definition of affiliation).
SBA requests comments on these proposed amendments to its current regulations. Although SBA seeks comments on all aspects of this proposed rule, it specifically requests comments on the following:
1. What impact will this rule have on Small Business Loan and SBG applicants?
2. Are there alternatives to the proposed rule relating to control, negative control, common ownership, identity of interest, common management, and franchise agreements?
3. Would the elimination of the newly-organized concern and joint venture affiliation rules from the Business Loan and SBG Programs affect those programs, and if so, how?
The Office of Management and Budget (OMB) has determined that this proposed rule is a “significant” regulatory action for the purposes of Executive Order 12866. Accordingly, the next section contains SBA's Regulatory Impact Analysis. However, this is not a major rule under the Congressional Review Act, 5 U.S.C. 800.
The Agency believes it needs to reduce regulatory burdens and expand its Business Loan Programs and SBG Program by streamlining delivery, lowering costs, and facilitating job creation. As noted above, responses received from the
As stated above, the potential benefits of this proposed rule are based on its elimination of unnecessary cost burdens on loan applicants' and lenders' participation in SBA-guaranteed loans.
These proposed changes would exempt the Business Loan Programs and SBG Program from certain government contracting rules that determine whether an entity is deemed affiliated with an applicant. These general affiliation rules apply to federal contracting to ensure that small businesses (and not another entity) receive and perform a federal contract when a preference for small businesses is provided. Many of these general principles of affiliation (
As indicated above, on February 25, 2013, the Agency issued a proposed rule for comment in the
A description of the need for this regulatory action and benefits and costs associated with this action, including possible distributional impacts that relate to Executive Order 13563, are included above in the Regulatory Impact Analysis under Executive Order 12866.
With the exception of the Economic Injury Disaster Loan (EIDL) which is a direct loan from SBA to the Borrower, the Business Loan Programs operate through the Agency's lending partners, which are 7(a) Lenders for the 7(a) Loan Program, Intermediaries for the Microloan Program, and CDCs for the 504 Loan Program. The Agency has held public forums and meetings which allowed it to reach hundreds of its lending partners and gain valuable insight, guidance, and suggestions from many of them and the trade associations which represent many of them. The Agency's outreach efforts to engage stakeholders before proposing this rule was extensive, and will continue throughout the comment period.
This action meets applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.
SBA has determined that this proposed rule will not have substantial, direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, for the purposes of Executive Order 13132, SBA has determined that this proposed rule has no federalism implications warranting preparation of a federalism assessment.
The SBA has determined that this proposed rule would not impose significant additional reporting and recordkeeping requirements under the Paperwork Reduction Act (PRA). Specifically, participants in SBA's 7(a) Loan Program will continue to report any affiliates of their business on SBA Form 1919 (OMB Control No. 3245–0348), and participants in SBA's 504 Loan Program will continue to report affiliates on SBA Form 1244 (OMB Control No. 3245–0071). EIDL Program participants will continue to report affiliates on SBA Form 5 (OMB Control No. 3245–0017), and SBG Program participants will continue to report affiliates on SBA Form 994 (OMB Control No. 3245–0007).
When an agency issues a rulemaking proposal, the Regulatory Flexibility Act (RFA) requires the agency to “prepare and make available for public comment an initial regulatory analysis” which will “describe the impact of the proposed rule on small entities.” Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities. The rulemaking will positively impact all of the approximately 5,000 7(a) Lenders (some of which are small) and all of the approximately 260 CDCs (all of which are small). The proposed rule will reduce the burden on program participants as they independently choose on what level to participate, with cost to deliver being a significant influence. The proposed modifications of certain program process requirements through this proposed modification of eligibility based on affiliation is not projected to adversely impact or cost on the small business borrower, lender or CDC.
This proposal presents a best practice rule that removes unnecessary regulatory burdens and increases access to capital for small businesses and facilitates American job preservation and creation. SBA has determined that there is no significant impact on a substantial number of small entities. SBA invites comment from members of the public who believe there will be a significant impact either on lenders, CDCs, or their borrowers.
Claims, Reporting and recordkeeping requirements, Small businesses, Surety bonds.
Individuals with disabilities, Loan programs—business, Reporting and recordkeeping requirements, Small businesses.
Grant programs—business, Individuals with disabilities, Loan programs—business, Reporting and recordkeeping requirements, Small businesses.
For the reasons stated in the preamble, SBA proposes to amend 13 CFR parts 115, 120, and 121 as follows:
5 U.S.C. app 3; 15 U.S.C. 687b, 687c, 694a, 694b note; and Pub. L. 110–246, Sec. 12079, 122 Stat. 1651.
15 U.S.C. 634(b)(6), (b)(7), (b)(14), (h), and note, 636(a), (h), and (m), 650, 687(f), 696(3), and 697(a) and (e); Pub. L. 111–5, 123 Stat. 115, Pub. L. 111–240, 124 Stat. 2504.
15 U.S.C. 632, 634(b)(6), 662, and 694a(9).
(a) * * *
(8) For SBA's Business Loan and Surety Bond Guarantee programs, the size standards and bases for affiliation are set forth in § 121.301.
(f) Concerns and entities are affiliates of each other when one controls or has the power to control the other, or a third party or parties controls or has the power to control both. It does not matter whether control is exercised, so long as the power to control exists. For the purposes of SBA's Business Loan Programs, Disaster Loan Program, and Surety Bond Guarantee Program, the following principles of affiliation apply:
(1)
(2)
(ii) Agreements to open or continue negotiations towards the possibility of a merger or a sale of stock at some later date are not considered “agreements in principle” and are thus not given present effect.
(iii) Options, convertible securities, and agreements that are subject to conditions precedent which are incapable of fulfillment, speculative, conjectural, or unenforceable under state or Federal law, or where the probability of the transaction (or exercise of the rights) occurring is shown to be extremely remote, are not given present effect.
(iv) An individual, concern or other entity that controls one or more other concerns cannot use options, convertible securities, or agreements to appear to terminate such control before actually doing so. SBA will not give present effect to individuals', concerns' or other entities' ability to divest all or part of their ownership interest in order to avoid a finding of affiliation.
(3)
(4)
(ii) SBA may presume an identity of interest between close relatives, as defined in 13 CFR 120.10, with identical or substantially identical business or economic interests (such as where the family members operate concerns in the same or similar industry in the same geographic area).
(5)
(6)
(7)
(8)
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for certain CFM International S.A. (CFM) CFM56–5B series turbofan engines. This proposed AD was prompted by a corrected lifing analysis by the engine manufacturer that shows the need to identify an initial and repetitive inspection threshold for certain part number (P/N) turbine rear frames (TRFs). This proposed AD would require initial and repetitive inspections of certain P/N TRFs on the low-pressure turbine (LPT) frame assembly. We are proposing this AD to prevent failure of the TRF on the LPT frame assembly, which could lead to engine separation, damage to the engine, and damage to the airplane.
We must receive comments on this proposed AD by December 1, 2015.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
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For service information identified in this proposed AD, contact CFM International Inc., Aviation Operations Center, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45125; phone: 877–432–3272; fax: 877–432–3329; email:
You may examine the AD docket on the Internet at
Kyle Gustafson, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781–238–7183; fax: 781–238–7199; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We were informed by CFM that it has corrected its lifing analysis for the TRF, P/N 338–102–907–0 and P/N 338–102–908–0, on the LPT frame assembly installed on CFM56–5B turbofan engines. This corrected lifing analysis shows the need for initial and repetitive inspections of certain P/N TRFs to manage low-cycle fatigue cracks. This condition, if not corrected, could result in failure of the TRF on the LPT frame assembly, which could lead to engine separation, damage to the engine, and damage to the airplane.
The initial and repetitive inspection intervals differ depending on whether CFM Service Bulletin (SB) No. CFM56–5B S/B 72–0308, Revision 5, dated October 12, 2007, has been applied. We are proposing to allow engines with TRFs that have exceeded the initial inspection threshold a continued in-service allowance of 150 cycles to provide sufficient time to perform the initial inspection. The proposed repetitive inspection intervals are based on the size of the crack, if any, found during the inspection.
We reviewed CFM SB No. CFM56–5B S/B 72–0850, dated December 19, 2012, and CFM SB No. CFM56–5B S/B 72–0308, Revision 5, dated October 12, 2007. CFM SB No. CFM56–5B S/B 72–0850 describes procedures for inspecting the TRF. CFM SB No. CFM56–5B S/B 72–0308 identifies the engines to which this proposed AD applies. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require initial and repetitive inspections of the TRF on the LPT frame assembly.
We estimate that this proposed AD would affect about 94 engines installed on airplanes of U.S. registry. We also estimate that it would take about 3 hours per engine to do the inspection. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of this proposed AD on U.S. operators to be $23,970.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by December 1, 2015.
None.
This AD applies to CFM International S.A. (CFM) CFM56–5B engines with turbine rear frame (TRF), part number (P/N) 338–102–907–0 or P/N 338–102–908–0, installed.
This AD was prompted by a corrected lifing analysis by the engine manufacturer that shows the need for an initial and repetitive inspection of certain P/N TRFs on the low-pressure turbine (LPT) frame assembly. We are issuing this AD to prevent failure of the TRF on the LPT frame assembly, which could lead to engine separation, damage to the engine, and damage to the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1)
(i) Prior to accumulating 25,000 cycles since new (CSN) on the TRF of the LPT frame assembly or within 150 cycles after the effective date of this AD, whichever occurs later, perform an initial eddy current inspection (ECI) or a fluorescent penetrant inspection (FPI) of the TRF mount struts on the LPT assembly.
(ii) For engines with unknown CSN on the TRF of the LPT frame assembly, perform the initial inspection required by this AD within 150 cycles-in-service after the effective date of this AD.
(iii) Use paragraph 3.B. in the Accomplishment Instructions of CFM SB No. CFM56–5B S/B 72–0850, dated December 19, 2012, to do the ECI and paragraph 3.C. in the Accomplishment Instructions of CFM SB No. CFM56–5B S/B 72–0850, to do the FPI. Do not include TRF mount strut crack lengths towards the cumulative crack length after the cracks are repaired.
(iv) If no cracks are found on any of the three TRF mount struts, or the cumulative length of all cracks at any TRF mount strut location is less than 0.20 inches, repeat the inspection within 1,670 cycles since last inspection (CSLI).
(v) If the cumulative length of cracks at any TRF mount strut location is greater than or equal to 0.20 inches, but less than 0.25 inches, repeat the inspection within 280 CSLI.
(vi) If the cumulative length of cracks at any TRF mount strut location is 0.25 inches or greater, replace the TRF with a part eligible for installation before further flight.
(2)
(i) Prior to accumulating 32,000 CSN on the TRF of the LPT frame assembly or within 150 cycles after the effective date of this AD, whichever occurs later, perform an initial ECI or FPI of the TRF mount struts on the LPT frame assembly.
(ii) For engines with unknown CSN on the TRF of the LPT frame assembly, perform the initial inspection required by this AD within 150 cycles-in-service after the effective date of this AD.
(iii) Use paragraph 3.B. in the Accomplishment Instructions of CFM SB No. CFM56–5B S/B 72–0850, dated December 19, 2012, to do the ECI and paragraph 3.C. in the Accomplishment Instructions of CFM SB No. CFM56–5B S/B 72–0850, to do the FPI. Do not include TRF mount strut crack lengths towards the cumulative crack length after the cracks are repaired.
(iv) If no cracks are found on any of the three TRF mount struts, or the cumulative length of cracks at any TRF mount strut location is less than 0.20 inches, repeat the inspection within 2,500 CSLI.
(v) If the cumulative length of cracks at any TRF mount strut location is greater than or equal to 0.20 inches and less than 0.25 inches, repeat the inspection within 370 CSLI.
(vi) If the cumulative length of cracks at any TRF mount strut location is 0.25 inches or greater, replace the TRF with a part eligible for installation before further flight.
The Manager, Engine Certification Office, FAA, may approve AMOCs for this AD. Use the procedures found in 14 CFR 39.19 to make your request. You may email your request to:
(1) For more information about this AD, contact Kyle Gustafson, Aerospace Engineer, Engine Certification Office, FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA 01803; phone: 781–238–7183; fax: 781–238–7199; email:
(2) CFM SB No. CFM56–5B S/B 72–0850, dated December 19, 2012, and CFM SB No. CFM56–5B S/B 72–0308, Revision 5, dated October 12, 2007, can be obtained from CFM using the contact information in paragraph (g)(3) of this proposed AD.
(3) For service information identified in this AD, contact CFM International Inc., Aviation Operations Center, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45125; phone: 877–432–3272; fax: 877–432–3329; email:
(4) You may view this service information at the FAA, Engine & Propeller Directorate, 12 New England Executive Park, Burlington, MA. For information on the availability of this material at the FAA, call 781–238–7125.
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
The FAA proposes to amend the regulations governing the curriculum and operations of FAA-certificated Aviation Maintenance Technician Schools. These amendments would modernize and reorganize the required curriculum subjects in the appendices of the current regulations. They would also remove the course content items currently located in the appendices and require that they be placed in each school's operations specifications so they could more easily be amended when necessary. The amendments are needed because the existing curriculums are outdated, do not meet current industry needs, and can be changed only through notice and comment rulemaking. These amendments would ensure that aviation maintenance technician students receive up-to-date foundational training to meet the demanding and consistently changing needs of the aviation industry.
Send comments on or before December 31, 2015.
Send comments identified by docket number FAA–2015–3901 using any of the following methods:
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For technical questions concerning this action, contact Robert W. Warren, Aircraft Maintenance Division, Federal Aviation Administration, 800 Independence Avenue SW., Washington DC 20591; telephone (202) 267–1711; email
The FAA's authority to issue rules on aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority.
This rulemaking is promulgated under the authority described in Title 49, Subtitle VII, Part A, Subpart I, Chapter 401, Section 40113 (prescribing general authority of the Administrator of the FAA, with respect to aviation safety duties and powers, to prescribe regulations); and Subpart III, Chapter 447, Sections 44701 (general authority of the Administrator to prescribe regulations and minimum standards in the interest of safety for inspecting, servicing, and overhauling aircraft, engines, propellers, and appliances, including for other practices, methods, and procedures necessary for safety in air commerce); 44702 (authority of the Administrator to issue air agency certificates); 44707 (authority of the Administrator to examine and rate air agencies, including civilian schools giving instruction in repairing, altering, and maintaining aircraft, aircraft engines, propellers, and appliances, on the adequacy of instruction, the suitability and airworthiness of equipment, and the competency of instructors); and 44709 (authority of the Administrator to amend, modify, suspend, and revoke air agency and other FAA-issued certificates). This proposed regulation is within the scope of that authority.
This proposed rule would amend the regulations governing Aviation Maintenance Technician Schools (14 CFR part 147) to both update the existing curriculums and provide an efficient means of changing specific course items under each main subject heading, when needed, by including them in each school's operations specifications. The proposal sets forth both a description of operations specifications and a process for amending, suspending, or terminating them. In addition, the proposed amendments would clarify existing requirements, remove gender-specific references, and eliminate duplication found in some sections of the current rules.
The FAA has updated its regulations governing aviation maintenance technician schools only infrequently since 1962, when they were re-codified from the former Civil Air Regulations (CAR) part 53 into current Title 14 of the Code of Federal Regulations (14 CFR) part 147. (27 FR 6669, Jul. 19, 1962). The agency last amended part 147 in 2011 to add a new § 147.8 that placed restrictions on the employment of former FAA employees, however the agency has made no curriculum changes since 1992. Based on recent studies and reports (which are discussed below in more detail), the FAA has determined that the current school curriculums are dated and do not provide students with the skills necessary for maintaining modern aircraft.
When the FAA first shaped the basic training curriculum during the 1962 recodification, the use of advanced materials, advanced electronic operating systems, computers, high bypass propulsion systems, and smart aircraft did not exist in civilian aviation. Since the 1992 rule changes, the industry has produced larger, state of the art transport aircraft (such as the Boeing 787 and Airbus A380) that incorporate very advanced technologies and complex systems. Similar advancements in technology have also evolved in all other levels of aircraft such as general aviation aircraft and business aircraft. The FAA has also not updated part 147 to account for recent advances in rotorcraft technology, composites, unmanned aerial vehicles, glass panels, light sport aircraft (LSA), and the spread of electronics into every other aspect of aircraft.
In view of the expected continued rapid pace of technological change in the aviation industry, part 147 curriculums will need to be updated frequently and quickly. However, because these curriculums are currently specified in the part 147 appendices, the FAA can change them only through notice and comment rulemaking, which is a time-consuming and inefficient means of modernizing the curriculum. As a consequence, without the proposed changes, the school curriculums will always be several years behind what is needed to effectively train aviation maintenance technician students. By including the curriculums in each school's operations specifications, they may be updated expeditiously to keep pace with emerging technologies.
The FAA finds the proposed rule's benefits would accrue from changing curriculum hours, which would lower the more costly laboratory/workshop time (while offset by increasing classroom time) and also from eliminating the exemptions currently issued for aviation mechanic testing requirements. The estimated total benefits of this rule are about $10 million ($7 million, present value at 7%).
The two major compliance costs of the rule are initial curriculum revisions and subsequent curriculum revisions. The latter may be divided into FAA-proposed recommendations for amendments to the technician school curriculum, and technician school submissions to request amendments to their curriculum. The estimated total costs are about $4 million ($3 million, present value at 7%). Net benefits equal approximately $7 million ($3 million, present value at 7%).
Part 147 specifies the requirements for the certification and operations of FAA-
While not the only studies/reports that addressed the issues supporting this proposed rulemaking, two were instrumental to its development. First, in March 2003, the General Accounting Office (GAO)
1. Serious and growing gaps between the minimum training curriculum required by part 147 and the current and forecast levels of aircraft technology.
2. Concerns that the required curriculums at FAA-approved aviation maintenance technician schools are outdated and are primarily geared to smaller, less complex aircraft that do not transport a significant number of passengers, and may not be relevant to most of the aircraft flown today.
3. Limitations of basic courses that should prepare students to maintain and repair the body and engines of modern commercial aircraft.
The GAO recommended the FAA review the minimum Airframe and Powerplant (A&P) curriculums required for certificated schools to identify courses that do not reflect widely used aircraft technology and materials on commonly flown commercial aircraft. The GAO also recommended that changes to the curriculums be reflected on the mechanic's certification examination. This would ensure the same standards applied to all candidates for the A&P certificate.
Growing recognition of these issues prompted the second study and report instrumental to this rulemaking. In 2007, the FAA tasked the Aviation Rulemaking Advisory Committee (ARAC) to form the Part 147 Aviation Maintenance Technician Schools Curriculum and Operating Requirements Working Group (the Part 147 Working Group). The ARAC subsequently tasked the Part 147 Working Group to study some of the issues raised in the GAO report and to make recommendations to address them. In December 2008, the Part 147 Working Group issued its Final Report (the ARAC Report).
The ARAC Report suggested a solution that could help expedite keeping course content current. The report referenced the process used by training centers certificated by the FAA under 14 CFR part 142 to control course content and other matters related to the centers' providing flight-related training to airmen. Section 142.3 provides for and defines “training specifications” as a document issued by the FAA to a training center that “prescribes that center's training, checking, and testing authorizations and limitations, and specifies training program requirements.” Training specifications are similar to “operations specifications” issued by the FAA to certificate holders in other venues (
Amending training or operations specifications is a more efficient and expeditious means of making changes to a certificate holder's operations than is the process of notice and comment rulemaking for rules of general applicability. The ARAC Report recommended that aviation maintenance technician schools' curriculum procedures documents be placed in what would be new training specifications. These would function similar to operations specifications, thereby facilitating their updating by means of the amendment process. The FAA is proposing that each certificated aviation maintenance technician school would use operations specifications (in lieu of the suggested training specifications) to manage its operations, including its training curriculum.
This proposal addresses several of the recommendations in the ARAC Report,
• Placing the subject course items in operations specifications while keeping the required subject area headings in the appendices;
• Updating some of the subject areas and the items under the subject course headings;
• Revising the distribution of curriculum hours among the General, the Airframe, and the Powerplant curriculums;
• Incorporating a distance learning option; and
• Creating a new provision to allow students to take the General written test after completing that curriculum but before meeting the experience requirements of § 65.77.
Consistent with the recommendations in both the GAO Report and the ARAC Report, and with the FAA's own awareness that the current course curriculums set forth in the part 147 appendices are long overdue to be updated, the FAA proposes to amend some of the subject headings in part 147 appendices B–D to better reflect their appropriate course content. The agency also proposes to remove the course content items currently found under each subject heading in the appendices and include them in each school's operations specifications under the identical subject headings that would remain in the appendices. We also propose to amend some of these course content items to update them and to better reflect the areas to be taught within each subject area. As discussed above, if the course content items are contained in the schools' operations specifications, they can, when necessary, be more easily amended through the process provided by this proposal for amending operations specifications.
Section 147.21(b) contains the total minimum number of curriculum hours of instruction (1,900 hours) for the combined Airframe and Powerplant ratings. The ARAC Report recommended retaining this 1,900 hour minimum. The FAA agrees with that recommendation, and also with the report's recommendation that the number of instruction hours for the Airframe and Powerplant ratings should be redistributed as follows:
• General—from 400 hours to 450 hours.
• Airframe—from 750 hours to 800 hours.
• Powerplant—from 750 hours to 650 hours.
With changes in aircraft technologies increasingly emphasizing electricity, electronics, and advanced materials, the FAA concurs with the ARAC Report that adding hours to the General and Airframe curriculum is appropriate. The FAA also agrees that revising the list of required subjects and updating the course content items within the major subject headings would be an important step in meeting industry needs for aviation maintenance technicians who have been trained in up-to-date aircraft materials and systems.
The FAA also proposes to include an option for competency-based training utilizing minimum credit hours based on typical higher education accreditation criteria. The minimum number of credit hours (equivalent to 1,900 training hours) would total 43 credit hours. This would be the combined credit hours for Airframe and Powerplant requirements, which include a minimum of 10 credit hours for the General curriculum, 18 credit hours for the Airframe curriculum, and 15 credit hours for the Powerplant curriculum. Each school would have the option to be approved for either an instructional hours curriculum or a credit hours curriculum, but not both.
A credit hour is a unit of measure that gives value to the level of instruction, academic rigor, and time requirements for a course taken at an educational institution. At its most basic, a credit hour is a proxy measure of a quantity of student learning. The higher education community has long used the credit hour, as defined by the “Carnegie unit,” as part of a process to establish a standard measure of faculty workloads, costs of instruction, and rates of educational efficiencies, as well as a measure of student work for transfer students. A credit hour for purposes of part 147 is an institutionally established equivalency that reasonably approximates some minimum amount of student work reflective of the amount of work expected in a Carnegie unit. A school that chooses to use a credit hour curriculum would be required to determine the clock-to-credit-hour conversion requirements and credit hours to be awarded for coursework under that option.
No matter which of the two options a school would select, it would have to ensure equivalent comprehensive coverage of the General, Airframe, and Powerplant curriculum subjects areas, including the course content items under them.
As proposed, the “General Curriculum Subjects” headings, including proposed new and revised subject headings, would remain in Appendix B of part 147. In addition, those same subject headings would be included in each school's Operations Specification B002, captioned “General Curriculum Subjects.” The FAA proposes to delete the course content items currently included under each curriculum subject heading in the appendix. These course content items, as well as new course content items for the new and revised subject headings, would be included in each school's operations specifications, as recommended by the ARAC Report. These items would be listed in each school's Operations Specification B002 under the corresponding subject heading. Once the course content items were included in a school's Operations Specifications, the FAA and the school could amend them as needed to keep pace with ongoing changes in technology. The proposed “General Curriculum Subjects” headings are as follows:
The above proposed “General Curriculum Subjects” headings differ from the existing subject headings as follows:
• Proposed subject heading “A” (“Fundamental Electricity and Electronics”) would be a change from the existing subject heading “A” (“Basic Electricity”). This revision is needed to better reflect evolving technological changes, with emphasis on electronics required for maintaining current and newer aircraft types.
• Proposed subject heading “E” (“Aircraft Materials, Hardware, and Processes”) would be a change from the existing subject heading “E” (“Materials and Processes”). This revision is needed to highlight the differences between aircraft materials, hardware, and specific processes, such as new nondestructive testing methods and techniques.
• Proposed subject heading “I” (“Maintenance Forms, Records, and Publications”) would be a change from the existing subject heading “I” (“Maintenance Forms and Records”). Items to be covered would include completing miscellaneous forms, using appropriate terminologies, and familiarization with pertinent records and publications. This would also help ensure that students have the ability to read and understand publications and FAA regulations. This heading would also encompass what is in the current subject heading “K” (“Maintenance Publications).” Accordingly, “Maintenance Publications” would be deleted as a separate subject heading.
• Proposed subject heading “J” (“Physics for Aviation”) would be a change from the existing subject heading “J” (“Basic Physics”). This change would better reflect the specifics of aviation physics that should be taught.
• A new subject heading “K” is proposed entitled “Inspection Concepts and Techniques.” This would replace the current subject heading “K” (“Maintenance Publications”), which is now part of proposed subject heading “I.” Inspections are a key element in any good maintenance practice and require a high degree of knowledge and practical application. Inspections vary from nondestructive testing to general visual and detailed visual inspections—all of which must be performed in accordance with approved or acceptable data.
• A new subject heading “M” is proposed entitled “Human Factors.” Aviation maintenance is always in a state of flux. Evolving aircraft design and manufacturing contain materials, powerplants, and electronic subsystems that did not exist in earlier models. This situation is compounded by the growing number of aging aircraft. Technicians are working longer hours and different shifts. Maintenance technicians are increasingly using sophisticated equipment and procedures to maintain modern aircraft. Human error is the primary, or a contributing factor, in 80% (or more) of aviation incidents/accidents. Workers routinely commit errors that result in injuries, damage to equipment, regulatory non-compliance, breaches of flight safety, and more. The goal of introducing human factors training into the schools' General curriculum is to help aviation technicians recognize the situations that can lead to error. This training would
• A new subject heading “N” is proposed entitled “Foreign Object Elimination (FOE).” Foreign objects have been a major cause of aircraft damage and ad hoc maintenance. This damage has led to disastrous aviation accidents. Raising the awareness of foreign object elimination principals and techniques in a school's curriculum is a positive first step in foreign object damage elimination.
• A new subject heading “O” is proposed entitled “Alerts, Cautions, and Warning Indications.” Current and future flight deck designs incorporate sophisticated flight crew alerting systems. The existing curriculums do not take into consideration this state of the art technology, or associated safety and implementation issues associated with maintaining these alerting systems.
Similar to the General Curriculum Subjects headings amendments proposed above, the Airframe Curriculum Subject headings, including proposed new and revised subject headings, would remain in part 147, in this case, in Appendix C. In addition, those same subject headings would be included in each school's Operations Specification B003, captioned “Airframe Curriculum Subjects.” The FAA proposes to delete the course content items currently included under each curriculum subject heading in the appendix. These course content items, as well as new course content items for the new and revised subject headings, would be included in each school's operations specifications, as recommended by the ARAC Report. These items would be listed in each school's Operations Specification B003 under the corresponding subject heading. Once the course content items were included in a school's operations specifications, the FAA and the school could amend them as needed to keep pace with ongoing changes in technology.
The FAA proposes to eliminate the two Appendix C sub-headings: “I. Airframe Structures” and “II. Airframe Systems and Components.” Instead, all subject headings would be included under the main Appendix C heading “Airframe Curriculum Subjects.” The proposed “Airframe Curriculum Subjects” headings are as follows:
The above proposed “Airframe Curriculum Subjects” headings differ from the existing subject headings as follows:
• The proposed new subject heading “Metallic Structures” (proposed subject “A”) would be a change from the existing subject heading (“Wood Structures”—current subject “I.A”). This revision, along with the proposed revision to subject I.B (proposed “Non-Metallic Structures”—proposed subject “B”), is necessary to reflect a more useful division between metallic structures and non-metallic (including wood) structures. Metallic structures would cover aviation-related sheet metals, rivets, hardware, special fasteners, heat treatments, welding, forming, and the importance of using the Structural Repair Manual.
• The proposed new subject heading “Non-Metallic Structures” (proposed subject “B”) would be a change from the existing subject heading (“Aircraft Covering”—current subject “I.B”). This section would incorporate wood structures, aircraft coverings, composites, plastics, and glass. The subject matters currently included in the existing subject heading “Aircraft Finishes” (current subject “I.C”) would be covered in the proposed subject heading “G” titled “Cleaning and Corrosion Control” in the General Curriculum Subjects in Appendix B. The FAA proposes a new subject heading to read “Flight Controls” (proposed subject “C”). This subject heading would cover topics such as primary and secondary flight controls, structure alignment, and control surface indicators. It would also include the assembly and rigging subject matter that is currently listed as subject “I.F” (“Assembly and Rigging”) in Appendix C. Accordingly, “Assembly and Rigging” would be deleted as a separate subject heading.
• The subject matters included in the current subject heading “Sheet Metal and Non-Metallic Structures” (current subject “I.D”) would be covered in the proposed new subject headings “Metallic Structures” and “Non-Metallic Structures” (discussed above). Therefore, the agency proposes to remove that subject heading.
• The subject matters included in the current subject heading “Welding” (current subject “I.E”) would be covered in the proposed subject heading “Metallic Structures” (discussed above). Therefore, the agency proposes to remove that subject heading.
• While the subject matters included in the current heading “Airframe Inspection” would remain in Appendix C, they would no longer be in subject heading “I.G.” Under this proposal, they would be moved to subject heading “D.”
• While the subject matters included in the current heading “Aircraft Landing Gear Systems” would remain in Appendix C, they would no longer be in subject heading “II.A.” Under this proposal, they would move to subject heading “E,” which would be captioned “Landing Gear Systems.”
• While the subject matters included in the current heading “Hydraulic and Pneumatic Power Systems” would remain in Appendix C, they would no longer be in subject heading “II.B.” Under this proposal, they would move to subject heading “F,” which would be captioned “Hydraulic and Pneumatic Systems.”
• While the subject matters included in the current heading “Cabin Atmosphere Control Systems” would remain in Appendix C, they would no longer be in subject heading “II.C.” Under this proposal, they would move to subject heading “G,” which would be captioned “Environmental Systems.” This title better describes the course content, which covers cabin environmental systems, including the inspection, servicing, and troubleshooting of oxygen systems and instrument cooling systems.
• While the subject matters included in the current heading “Aircraft Instrument Systems” would remain in Appendix C, they would no longer be in subject heading “II.D.” Under this proposal, they would move to subject heading “H.”
• While the subject matters included in the current heading “Communication and Navigation Systems” would remain in Appendix C, they would no longer be in subject heading “II.E.” Under this proposal, they would move to subject heading “L.”
• While the subject matters included in the current heading “Aircraft Fuel Systems” would remain in Appendix C, they would no longer be in subject heading “II.F.” Under this proposal, they would move to subject heading “J.”
• While the subject matters included in the current heading “Aircraft
• While the subject matters included in the current heading “Position and Warning Systems” would remain in Appendix C, they would no longer be in subject heading “II.H.” Under this proposal, they would be included in proposed subject heading “E” (“Landing Gear Systems”) because its course content items are appropriate to be covered in that subject. Accordingly, “Position and Warning Systems” would be deleted as a separate subject heading.
• While the subject matters included in the current heading “Ice and Rain Control Systems” would remain in Appendix C, they would no longer be in subject heading “II.I.” Under this proposal, they would move to subject heading “L.”
• While the subject matters included in the current heading “Fire Protection Systems” would remain in Appendix C, they would no longer be in subject heading “II.J.” Under this proposal, they would move to subject heading “M” and be retitled “Airframe Fire Protection Systems.”
• The FAA proposes to add a new subject heading entitled “Rotorcraft Fundamentals” (new subject heading “N”) to address maintenance items such as rotorcraft fundamentals, transmissions, and operation of rotor systems.
• The FAA proposes to add a new subject heading entitled “Water and Waste Systems” (new subject heading “O”) to address the advances in potable water and lavatory waste systems. Additionally, there is the potential for the accumulation of ice if the systems are not operated, maintained, or serviced properly. This ice could detach from the aircraft causing damage to the aircraft and raising safety issues on the ground.
Similar to the General and the Airframe curriculum subjects headings amendments proposed above, the “Powerplant Curriculum Subjects” headings, including proposed new and revised subject headings, would remain in part 147, in this case, in Appendix D. In addition, those same subject headings would be included in each school's Operations Specification B004, captioned “Powerplant Curriculum Subjects.” The FAA proposes to delete the course content items currently included under each curriculum subject heading in the appendix. These course content items, as well as new course content items for the new and revised subject headings, would be included in each school's operations specifications, as recommended by the ARAC Report. These items would be listed in each school's Operations Specification B004 under the corresponding subject heading. Once the course content items were included in a school's operations specifications, the FAA and the school could amend them as needed to keep pace with ongoing changes in technology.
The FAA proposes to eliminate the two Appendix D sub-headings: “I. Powerplant Theory and Maintenance” and “II. Powerplant Systems and Components.” Instead, all subject headings would be included under the main Appendix D heading “Powerplant Curriculum Subjects.” The proposed “Powerplant Curriculum Subjects” headings are as follows:
The above proposed “Powerplant Curriculum Subjects” headings differ from the existing subject headings as follows:
• The FAA is proposing to combine the existing subject headings “Fuel Metering Systems” (current subject “II.F”) and “Engine Fuel Systems” (current subject “II.G”) under a new subject heading: “Fuel Metering Systems” (proposed subject “I”).
• The FAA is proposing to combine the existing subject headings of “Induction and Engine Airflow Systems” (current subject “II.H”) and “Engine Cooling Systems” (current subject “II.I”) under a new subject heading: “Reciprocating Engine Induction and Cooling Systems” (proposed subject “J”). This revised subject would incorporate induction and cooling systems designs, components, and inspection practices.
• The FAA proposes to add a new subject heading: “Turbine Engine Air Systems” (proposed subject “K”). This section would address engine anti ice systems, compressor bleed systems, and turbine case cooling.
• The FAA proposes to remove the subject “Unducted Fans” (current subject “II.L”) from the Powerplant Curriculum Subjects of Appendix D. In the late 1970's, the unducted fan engine (a type of aircraft engine related in concept to both the turboprop and turbofan, but different from both) was under consideration for use on commercial airliners because of its fuel economy benefits. Since fuel costs became an increasingly significant aspect for commercial aviation, engine designers felt the unducted fan would become a viable solution. For that reason, the FAA added unducted fans to the aviation maintenance technician school powerplant curriculum in 1992. Because unducted fan technology never became popular, the FAA is proposing to remove this subject from the powerplant curriculum.
One of the primary objectives of this proposed rulemaking is to establish a regulatory basis for the FAA to issue operations specifications to aviation maintenance technician schools as a tool for their management and oversight. As discussed above, in order to facilitate keeping the schools' curriculums up-to-date, the FAA proposes to remove the course content items listed under each subject heading in Appendices B–D and place them in each school's operations specifications. Current § 147.5 provides for the FAA to issue operations specifications to certificate holders who meet the requirements of part 147, and we are not proposing to change that. We are, however, proposing to amend § 147.3 to provide that no person may operate as an aviation maintenance technician school without or in violation of a certificate, rating, or operations specifications. And, the FAA is proposing a new § 147.9 that would provide, among other things, that each school's operations specifications contain its complete curriculum and the descriptions required under each of the subjects specified in the part 147 appendices. In addition, in order to facilitate keeping course content and other items included in the schools' operations specifications up to date, we are proposing a new § 147.10 that would provide processes for amending, suspending, or terminating operations specifications, including processes for petitioning for reconsideration of a decision adverse to the certificate holder. Whenever a proposed process states the submission must be written or in writing, the FAA contemplates that the submission could be a paper submission, one filed electronically, or both.
In a case where the certificate-holding district office found, under proposed
Because the FAA is proposing to remove the course curriculum items from the appendices of part 147 and require that all course curriculum items be placed in each school's operations specifications, all certificated aviation maintenance technician schools would be required to submit new curriculums to the FAA for approval. Current FAA Advisory Circular AC 147–3A (Certification and Operation of Aviation Maintenance Technician Schools) lists the course curriculum items from the appendices, and suggests acceptable options to the curriculums. This Advisory Circular is currently undergoing revision by the FAA. If this proposed rule becomes final, the FAA will further revise this Advisory Circular to provide guidance on how the schools can develop the required curriculums based on the existing course content items in the current appendices, and also on developing new course content items for the proposed new and revised subject headings. We are also proposing in § 147.21(a) to permit, with FAA approval, a school to teach approved curriculum subjects at levels exceeding those specified in the school's operations specifications. This change reflects that the FAA's rules are considered minimum standards that certificate holders may exceed. It also is consistent with the provision in current § 147.21(c) that the course content items must be taught to at least the indicated level of proficiency defined in appendix A. In order to facilitate future curriculum updates, the FAA is considering the creation of a Maintenance Training Review Board (MTRB) that would assess evolving industry needs on a recurring basis. The MTRB would review and recommend subsequent amendments to the curriculums. Under the procedures in proposed § 145.10, certificate holders and the FAA could agree upon appropriate curriculum changes when needed, and the operations specifications could be amended accordingly.
A form of information sharing for educational purposes using computer systems away from the traditional classroom setting has become known as “distance learning.” Distance learning (also known by other terms such as E-learning, home study, self-guided training, virtual classroom, distributed training, computer-based training (CBT) and Web-based training (WBT)) can be an effective means of teaching that affords a low cost alternative to classroom training when applied to a select group of curriculum subject areas. It is also an alternative that is timely and appropriate in today's challenging economic environment. Therefore, the FAA is proposing a new paragraph (g) to § 147.31 to provide the option for distance learning instruction under certain circumstances approved by the FAA.
The FAA proposes to revise the instructor requirements for certificated aviation maintenance technician schools to allow specially qualified instructors, who may not be FAA-certificated technicians, to teach certain courses when approved by the FAA. This proposed amendment would alleviate the limitation for non-FAA-certificated instructors to teach only in the General curriculum. This proposal would allow qualified non-FAA-certificated instructors to teach not only in the General curriculum, but also the Airframe, and/or Powerplant curriculums if deemed qualified and subsequently approved by the FAA. Each school would be required to maintain and keep in its operations specifications an up-to-date list of the names and qualifications of all its instructors.
The FAA proposes to add a new paragraph (f) to § 147.31 that would permit a student who had successfully completed the General curriculum to take the general written knowledge test even if the student had not met the experience requirements of 14 CFR 65.77. Section 65.75(a) provides that applicants for a mechanic certificate or rating must, after meeting the applicable experience requirements of § 65.77, pass a written test. Under this proposal, whenever a certificated aviation maintenance technician school demonstrates to an FAA Aviation Safety Inspector (ASI) with oversight responsibility for the school that a student has made satisfactory progress at the school, the student could take the aviation mechanic written general knowledge test.
The FAA proposes to amend § 147.41 to retain the requirement that an aviation maintenance technician school certificate holder may not change the school's physical location unless the change is approved in advance by the FAA, and that an application for the change must be made 30 days in advance of the contemplated move. However, the agency proposes to remove the current text that states if a school changes its location without FAA approval, “the certificate is revoked.” All certificate holders are entitled to due process before a certificate action could be final. Accordingly, we propose to remove existing text that states: “If he [the certificate holder] changes its location without approval, the certificate is revoked.” Because each certificate holder's operations specifications would include the physical address of the primary location of the school, we are proposing that new § 147.41 contain the requirement that the new location be listed in the school's operations specifications. Also, and as discussed below, we propose to remove gender-specific language from this section (
The FAA proposes to amend § 147.43 for clarity and to remove inappropriate text related to FAA inspection policies (
The FAA proposes to remove this section in its entirety. The FAA believes that Federal and State laws adequately protect the public from false and misleading advertising. Moreover, the FAA's mandate is to regulate aviation safety, not the advertising of the entities it regulates.
The FAA proposes to revise § 147.7 to add a requirement that an aviation maintenance technician school certificate surrender is not complete until the FAA accepts it for cancellation. This new surrender requirement would codify existing FAA policy, and would prevent a school under investigation from attempting to circumvent a possible enforcement action that could result in a revocation
The FAA proposes to amend several sections of part 147 (specifically, §§ 147.13, 147.15, 147.17, 147.31(c), and 147.41) to remove gender-specific language (“he”) from the current text, and revise the text to use gender-neutral terms.
The FAA proposes to remove current §§ 147.36, 147.37, and 147.38 because they are unnecessary in light of the corresponding initial certification requirements, which are continuing and ongoing. For example, current §§ 147.13, 147.21, and 147.23 each require an “applicant” to have or provide certain things, whereas the sections that would be removed require the continuation the initial requirement.
We also propose to revise §§ 147.13, 147.21, 147.23, and others, where pertinent, to read: “Each certificated aviation maintenance technician school must . . . .” Those requirements then would apply to an applicant for a certificate and would continue to apply to the school while in operation.
We are also proposing minor, non-substantive revisions throughout part 147 for clarity.
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96–354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96–39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, this Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this proposed rule. We suggest readers seeking greater detail read the full regulatory evaluation, a copy of which we have placed in the docket for this rulemaking.
In conducting these analyses, the FAA has determined that this proposed rule: (1) Has benefits that justify its costs, (2) is not an economically “significant regulatory action” as defined in section 3(f) of Executive Order 12866, (3) is “significant” as defined in DOT's Regulatory Policies and Procedures; (4) would not have a significant economic impact on a substantial number of small entities; (5) would not create unnecessary obstacles to the foreign commerce of the United States; and (6) would not impose an unfunded mandate on state, local, or tribal governments, or on the private sector by exceeding the threshold identified above. These analyses are summarized below.
Benefits would accrue from changing curriculum hours, which would lower the more costly laboratory time (while offset by increasing classroom time) and also from eliminating the exemptions currently issued for aviation mechanic testing requirements. The estimated total benefits of this rule are about $10 million ($7 million, present value at 7%).
The two compliance costs of the rule are initial curriculum revisions and subsequent curriculum revisions, The estimated total costs are about $4 million ($3 million, present value at 7%).
Net benefits equal approximately $7 million ($3 million, present value at 7%).
Aviation maintenance technician schools and the FAA.
• The analysis is conducted in constant dollars with 2014 as the base year.
• We calculated the present value of the potential benefit stream by discounting the monetary values using a 7 percent interest rate from 2016 to 2025.
• This final rule will become effective in 2016. We assume the compliance date will be one year after the effective date (2017).
• We assume no growth in the number of Aviation Maintenance Technician Schools.
• As per DOT guidance, we assume that there will be a 1.18 percent projected annual increase in real wages.
From 2016 to 2025, the estimated total benefits of this rule to aviation maintenance technician schools, and the FAA are about $10 million ($7 million, present value at 7%).
From 2016 to 2025, the estimated total costs are about $4 million ($3 million, present value at 7%).
The Regulatory Flexibility Act of 1980 (Pub. L. 96–354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle,
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
The FAA identified a total of 20 proprietary technician schools with less than 1,500 employees which are classified as small entities.
The FAA believes that this proposed rule would not have a significant economic impact on a substantial number of entities for the following reason:
The FAA estimates that their ratio of annualized costs to annual revenue is between 0.004% and 0.599%, which is not considered a significant economic impact. Therefore, as provided in section 605(b), the head of the FAA certifies that this rulemaking will not result in a significant economic impact on a substantial number of small entities.
The Trade Agreements Act of 1979 (Pub. L. 96–39), as amended by the Uruguay Round Agreements Act (Pub. L. 103–465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this proposed rule and determined that the objective would only affect domestic firms therefore would not create unnecessary obstacles to the foreign commerce of the United States.
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104–4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $151 million in lieu of $100 million. This proposed rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. According to the 1995 amendments to the Paperwork Reduction Act (5 CFR 1320.8(b)(2)(vi)), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.
This proposed rule would impose the following amended information collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA has submitted these information collection amendments to OMB for its review. Notice of OMB approval for these information collections will be published in a future
All active certificated technician schools will be required to submit a new curriculum to the FAA and issue updated OpSpecs.
We assumed:
• 162 technician schools.
• 320 hours for a manager and 80 hours for an administrative assistant for the initial revision.
• 32 hours for a manager and 8 hours for an administrative assistant for subsequent revisions.
• 10 percent of the curriculums would be rejected in every submission.
• Subsequent submissions would occur in the same year when curriculums are rejected.
Technician schools would submit requests for amendments to their curriculums.
We assumed:
• 9 requests per year.
• We estimate a technician school manager and an administrative assistant would need 3 hours each.
• A technician school director would need one hour to review and sign each amendment request.
• For the wages we assume that there will be a 1.18 percent annual increase in real wages.
Once the amendments are approved, the technician school curriculums would have to be revised.
We assumed:
• 9 curriculums per year would be revised.
• We estimate a technician school manager and an administrative assistant would need 32 hours and 8 hours, respectively to revise their curriculums.
• For the wages we assume that there will be a 1.18 percent annual increase in real wages.
The proposed rule would eliminate exemptions currently issued for aviation mechanic testing requirements.
We assumed:
• 30 exemptions/extensions per year.
• For each exemption/extension, we estimate 3 hours each for a technician school manager and an administrative assistant to write the exemption/extension letter and for a technician school director 1 hour to review and sign the exemption/extension letter.
• For the wages we assume that there will be a 1.18 percent annual increase in real wages.
FSDOs will have to review and approve the technician school curriculums.
We assumed:
• 162 curriculums would be submitted.
• 80 hours for a principal inspector to review the curriculums the first time and 16 hours for subsequent revisions.
• 10 percent of the curriculums would be rejected in every submission.
• Subsequent submissions would occur in the same year when curriculums are rejected.
The FAA would review and approve every request for amendments.
We assumed:
• The FAA would review and approve 9 requests per year.
• A principal inspector would need 16 hours for each review.
• 10 percent of the curriculums would be rejected in every submission.
• For the wages we assume that there will be a 1.18 percent annual increase in real wages.
The FAA would need to approve the technician school curriculums.
We assumed:
• 8 curriculums per year would be approved.
• A principal inspector would need 16 hours for each review.
• 10 percent of the curriculums would be rejected in every submission.
• For the wages we assume that there will be a 1.18 percent annual increase in real wages.
The proposed rule would eliminate exemptions currently issued for aviation mechanic testing requirements.
We assumed:
• 30 exemptions/extensions per year.
• 1 hour each for a Rule making director, an Office of Primary Responsibility (OPR) director and a Rule making manager.
• 2 hours each for an FAA attorney, a Rule making analyst, and an OPR administrative assistant
• 4 hours for a Rule making administrative assistant.
• For the wages we assume that there will be a 1.18 percent annual increase in real wages.
The total paperwork impact averages $352,340, taking 8,013 hours annually, as shown in the following table.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has reviewed the corresponding ICAO Standards and Recommended Practices and has identified no differences with these proposed regulations.
FAA Order 1050.1E identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph
The FAA has analyzed this proposed rule under the principles and criteria of Executive Order 13132, Federalism. The agency has determined that this action would not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.
The FAA analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it would not be a “significant energy action” under the executive order and would not be
The FAA invites interested persons to participate in this rulemaking by submitting written comments, data, or views. The agency also invites comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.
The FAA will file in the docket all comments it receives, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, the FAA will consider all comments it receives on or before the closing date for comments. The FAA will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. The agency may change this proposal in light of the comments it receives.
Proprietary or Confidential Business Information: Commenters should not file proprietary or confidential business information in the docket. Such information must be sent or delivered directly to the person identified in the
Under 14 CFR 11.35(b), if the FAA is aware of proprietary information filed with a comment, the agency does not place it in the docket. It is held in a separate file to which the public does not have access, and the FAA places a note in the docket that it has received it. If the FAA receives a request to examine or copy this information, it treats it as any other request under the Freedom of Information Act (5 U.S.C. 552). The FAA processes such a request under Department of Transportation procedures found in 49 CFR part 7.
An electronic copy of rulemaking documents may be obtained from the Internet by—
1. Searching the Federal eRulemaking Portal (
2. Visiting the FAA's Regulations and Policies Web page at
3. Accessing the Government Printing Office's Web page at
Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM–1, 800 Independence Avenue SW., Washington, DC 20591, or by calling (202) 267–9680. Commenters must identify the docket or notice number of this rulemaking.
All documents the FAA considered in developing this proposed rule, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1) above.
Aircraft, Airmen, Educational facilities, Reporting and recordkeeping requirements, Schools.
In consideration of the foregoing, the Federal Aviation Administration proposes to amend chapter I of title 14, Code of Federal Regulations as follows:
49 U.S.C. 106(g), 40113, 44701–44702, 44707, 44709.
This part describes how to obtain an aviation maintenance technician school certificate and associated ratings. This part also contains the rules each FAA-certificated school must follow in conducting its operations.
No person may operate as a certificated aviation maintenance technician school without, or in violation of, an aviation maintenance technician school certificate, rating, or operations specifications issued under this part.
(a) An application for a certificate and rating, or for an additional rating, must be made in a format acceptable to the FAA and must include the following:
(1) A description of the proposed curriculum;
(2) A list of the facilities, including their physical addresses, and the materials and equipment to be used;
(3) A list of the instructors to be used, including the kind of certificate and ratings held by each, and their certificate numbers; and
(4) The maximum number of students to be enrolled at any one time.
(b) An applicant who meets the requirements of this part is entitled to an aviation maintenance technician school certificate and associated ratings prescribing such operations specifications and limitations as are necessary in the interest of safety.
(a) An aviation maintenance technician school certificate or rating is effective from the date of issue until the certificate holder surrenders the certificate and the FAA accepts it for cancellation, or the FAA suspends or revokes it.
(a) Except for operations specifications paragraphs specifying ratings, operations specifications are not part of a certificate.
(b) The operations specifications issued to an aviation maintenance technician school must be available at the school for inspection by the public and the FAA at the address required by paragraph (c)(1) of this section.
(c) Each certificate holder's operations specifications must contain—
(1) The physical address of the certificate holder's primary location for operation of the school. The address shall also serve as the address for mailed paper correspondence between the FAA and the certificate holder.
(2) The ratings held.
(3) The complete curriculum and the descriptions required under each of the subjects specified in the appendices.
(4) Any exemption granted by the FAA to the school.
(5) Lists of the facilities, equipment, and materials used by the school to meet the requirements of §§ 147.15 through 147.19.
(6) The maximum number of students to be enrolled at any one time.
(7) A current list of instructors and their qualifications.
(8) Any other information the Administrator determines is necessary.
(a) The FAA may amend any operations specifications issued under this part if—
(1) The operations specification was issued erroneously;
(2) The FAA revises the operations specifications template;
(3) The FAA determines that safety in air commerce and the public interest require the amendment; or
(4) The certificate holder applies for the amendment and the FAA determines that safety in air commerce and the public interest allows the amendment.
(b) Except for an amendment involving a rating, which would be considered a certificate action, the FAA may amend, suspend, or terminate any operations specification issued under this part if the certificate-holding district office determines that safety in air commerce and the public interest require the amendment, suspension, or termination.
(c) Except as provided in paragraph (f) of this section for an amendment, suspension, or termination of an operations specification in which the certificate-holding district office finds that an emergency exists requiring immediate action, when the FAA initiates an amendment, suspension, or termination of an operations specification, the following procedure applies:
(1) The certificate-holding district office notifies the certificate holder in writing of the proposed amendment, suspension, or termination.
(2) The certificate-holding district office sets a reasonable period (but not less than 7 days) within which the certificate holder may submit written information, views, and arguments on the proposed amendment, suspension, or termination.
(3) After considering the material presented, the certificate-holding district office notifies the certificate holder of—
(i) The adoption of the proposed amendment, suspension, or termination;
(ii) The partial adoption of the proposed amendment, suspension, or termination; or
(iii) The withdrawal of the proposed amendment, suspension, or termination.
(4) If the certificate-holding district office issues an amendment, suspension, or termination of an operations specification, it becomes effective not less than 30 days after the certificate holder receives notice of it unless—
(i) The certificate-holding district office finds under paragraph (f) of this section that there is an emergency requiring immediate action with respect to safety in air commerce; or,
(ii) The certificate holder petitions for reconsideration of the amendment, suspension, or termination under paragraph (e) of this section.
(d) If the certificate holder applies for an amendment to its operations specifications, the following procedure applies:
(1) The certificate holder must file an application to amend its operations specifications at least 30 days before the date proposed by the applicant for the amendment to become effective.
(2) The application must be submitted to the certificate-holding district office in a form and manner prescribed by the FAA.
(3) After considering the material presented, the certificate-holding district office notifies the certificate holder of—
(i) The adoption of the applied for amendment;
(ii) The partial adoption of the applied for amendment; or
(iii) The denial of the applied for amendment. The certificate holder may petition for reconsideration of a denial or partial adoption under paragraph (e) of this section.
(4) If the certificate-holding district office approves the amendment following coordination with the certificate holder regarding its implementation, the amendment is effective on the date the FAA approves it.
(e) When a certificate holder seeks reconsideration of a decision from the certificate-holding district office concerning the denial or partial adoption of the certificate holder's applied for amendment, or of an FAA-initiated amendment, suspension, or termination of an operations specification, the following procedure applies:
(1) The certificate holder must petition for reconsideration of that decision within 30 days of the date that the certificate holder receives a notice of denial or partial adoption of the applied for amendment to its operations specifications, or of the date it receives notice of an FAA-initiated amendment, suspension, or termination of one or more of its operations specifications, whichever circumstance applies.
(2) The certificate holder must address its petition to the applicable Flight Standards Regional Division Manager.
(3) A petition for reconsideration, if filed within the 30-day period, suspends the effectiveness of any amendment, suspension, or termination issued by the certificate-holding district office unless the certificate-holding district office has found, under paragraph (f) of this section, that an emergency exists requiring immediate action with respect to safety in air transportation or air commerce.
(4) If a petition for reconsideration is not filed within 30 days, the effective date of the amendment, suspension, or termination shall be as specified under paragraphs (c) or (d) of this section.
(f) If the certificate-holding district office finds that an emergency exists requiring immediate action with respect to safety in air commerce or air transportation that makes the procedures set out in paragraphs (c) and (e) of this section impracticable or contrary to the public interest:
(1) The certificate-holding district office amends, suspends, or terminates the operations specification(s) and makes the amendment, suspension, or termination effective on the day the certificate holder receives notice of it.
(2) In the notice to the certificate holder, the certificate-holding district office specifies the reasons for its finding that an emergency exists requiring immediate action with respect to safety in air commerce and air transportation or that makes it impracticable or contrary to the public interest to stay the effectiveness of the amendment, suspension, or termination.
(a) Each certificated aviation maintenance technician school must provide and maintain at least the facilities, equipment, and materials specified in §§ 147.15 through 147.19 that are appropriate to the ratings held.
(b) A school may not make a significant change to its facilities, equipment, or materials used to comply with paragraph (a) of this section unless the change is approved in advance by the FAA. The approved changes must be listed in the certificate holder's operations specifications.
Each certificated aviation maintenance technician school must provide and maintain properly heated, lighted, and ventilated facilities for the rating or ratings held that the FAA determines are appropriate for the
(f) A suitable area and space with adequate equipment, including benches, tables, and test equipment, to disassemble, service, and inspect:
(a) Each certificated aviation maintenance technician school must provide and maintain the following instructional equipment appropriate to the ratings held:
Each certificated aviation maintenance technician school must provide and maintain an adequate supply of materials, special tools, and shop equipment appropriate to the school's FAA-approved curriculum that are used in constructing and maintaining aircraft, to assure that each student will be properly instructed. The special tools and shop equipment must be in satisfactory working condition for their intended purpose.
(a) Each certificated aviation maintenance technician school must have and use an FAA-approved curriculum that meets the minimum requirements set forth in the school's operations specifications. The curriculum must be designed to qualify students to meet the minimum requirements of subpart D of 14 CFR part 65. With FAA approval, a school may teach approved curriculum subjects at levels exceeding those specified in the school's operations specifications.
(b) The curriculum required by paragraph (a) of this section must offer at least the number of instructional hours or credit hours for the rating sought as set forth in paragraph (b)(1) or (b)(2) as follows:
(1) For instructional hours, each instruction unit hour may not be less than 50 minutes—
(i) Airframe—1,250 hours (450 general plus 800 airframe).
(ii) Power plant—1,100 hours (450 general plus 650 power plant).
(iii) Combined airframe and power plant—1,900 hours (450 general plus 800 airframe and 650 powerplant).
(2) For credit hours, each credit unit hour must be based on higher education accreditation criteria—
(i) Airframe—28 credit hours (10 general credit hours plus 18 credit hours airframe).
(ii) Powerplant—25 credit hours (10 general credit hours plus 15 credit hours power plant)
(iii) Combined airframe and power plant—43 credit hours (10 credit hours general plus 18 credit hours airframe and 15 credit hours power plant).
(c) The curriculum must cover the subjects and items prescribed in appendices B, C, or D, and the items included under those subject headings in each school's operations specifications as applicable for the school's ratings. Each item must be taught to at least the indicated level of proficiency, defined in Appendix A and set forth in the corresponding operations specification item.
(d) Notwithstanding the provisions of paragraphs (a) through (c) of this section and § 147.11, the holder of a certificate issued under subpart B of this part may apply for and receive approval of special courses in the performance of special inspection and preventive maintenance programs for a primary category aircraft type certificated under § 21.24(b) of this chapter. The school may also issue certificates of competency to persons successfully completing such courses provided that all other requirements of this part are met and the certificate of competency specifies the aircraft make and model to which the certificate applies.
Each certificated aviation maintenance technician school must provide the number of instructors holding appropriate mechanic certificates and ratings that the FAA determines necessary to provide adequate instruction and supervision of the students, including at least one FAA-certificated instructor for each 25 students in each shop or class. However, a school may, with FAA approval, provide specially qualified instructors who are not FAA certificated mechanics to teach general, airframe, powerplant, or specialized subjects. This provision does not relieve the school from having one instructor who holds an FAA mechanic certificate with ratings for Airframe, Powerplant, or both, as appropriate for each 25 students. Each school must maintain and keep current a list of the names and qualifications of all its instructors in its operations specifications.
(c) A school may not graduate a student unless the student has completed all of the appropriate curriculum requirements. However, the school may credit a student with instruction or previous experience as follows:
(1) A school may credit a student with instruction satisfactorily completed at—
(i) An accredited university, college, community college, or junior college;
(ii) An accredited vocational, technical, trade, or high school;
(iii) A military technical school, or
(iv) A certificated aviation maintenance technician school.
(2) A school may determine the amount of credit to be allowed—
(i) By an entrance test equal to one given to the students who complete a comparable required curriculum subject at the crediting school;
(ii) By an evaluation of an authenticated transcript from the student's former school; or
(iii) In the case of a student from a non-accredited military technical school, credit allowed may be determined based only on the successful completion of an entrance test.
(3) A school may credit a student with previous aviation maintenance experience comparable to required curriculum subjects. It must determine the amount of credit to be allowed by documents verifying that experience, and by giving the student a test equal to the one given to students who complete the comparable required curriculum subject at the school.
(4) A school may credit a student seeking an additional rating with previous satisfactory completion of the general portion of another school's curriculum.
(d) A school may not have more students enrolled at any one time than the number of students specified on its FAA-issued operations specifications.
(e) A school must use an FAA-approved system for determining final course grades and for recording student attendance. The system must show hours of absence allowed, and show how the missed material and hours will be made available to the student.
(f) Whenever an aviation maintenance technician school demonstrates to the FAA that a student has made satisfactory progress at the school, the student may take the aviation mechanic
(g) A certificated aviation maintenance technician school may use distance learning as an alternative instructional delivery method under certain circumstances approved by the FAA. Prior to implementation, the school must obtain initial and final FAA approval of the distance learning training program and must adopt policies and procedures for managing its distance learning program. The distance learning program must show that it will achieve a level of competency equal to, or greater than, that required by § 145.37.
(a) Each certificated aviation maintenance technician school must keep current records for each student enrolled, showing—
(1) The student's attendance, tests, and grades received on the subjects required by this part;
(2) The instruction credited to the student under § 147.31(c), if any; and
(3) The authenticated transcript of the student's grades from that school.
(b) Each school must retain the records required by paragraph (a) for at least two years after the end of the student's enrollment, and must make each record available for inspection by the FAA during that period.
(c) Each school must keep a current progress chart or individual progress record for each of its students, showing the practical projects or laboratory work completed, or to be completed, by the student in each subject.
(a) Each certificated aviation maintenance technician school must, upon request by a student who has graduated from the school, or by a student who leaves the school before being graduated, provide a transcript of the student's grades to the student. An official of the school must authenticate the transcript. The transcript must state the curriculum in which the student was enrolled, whether the student satisfactorily completed that curriculum, and the final grades the student received.
(b) Each school must provide a graduation certificate or certificate of completion to every student it graduates. An official of the school must authenticate the certificate. The certificate must show the date of graduation and the approved curriculum.
(a) Each certificated aviation maintenance technician school must provide instruction of sufficient quality that its graduates achieve the pass rates described in this section. For the school's graduates who apply for a mechanic certificate or for an additional rating within 60 days after they are graduated, the percentage of those passing the applicable FAA written tests on their first attempt during any period of 24 calendar months must be at least the percentage figured as follows:
(1) For a school graduating fewer than 51 students during that period—the national passing norm minus the number 20.
(2) For a school graduating at least 51, but fewer than 201, students during that period—the national passing norm minus the number 15.
(3) For a school graduating more than 200 students during that period—the national passing norm minus the number 10.
(b) The failure of a school to maintain the quality of instruction specified in paragraph (a) of this section may be the basis for suspending or revoking that school's certificate.
(c) As used in this section, “national passing norm” is the number representing the percentage of all graduates (of a curriculum for a particular rating) of all certificated aviation maintenance technician schools who apply for a mechanic certificate or additional rating within 60 days after they are graduated and pass the applicable FAA written tests on their first attempt during the period of 24 calendar months described in this section.
Each certificated aviation maintenance technician school must display the school's certificate, along with its associated ratings, at a place in the school that is normally accessible to the public and where its view is not obscured. The certificate must be available for inspection by the FAA.
The holder of an aviation maintenance technician school certificate may not make any change in the school's physical location unless the change is approved by the FAA in advance. If the certificate holder desires to change the school's location, the holder must notify the FAA, in writing, at least 30 days before the date of the contemplated change. The new location must be listed in the certificate holder's operations specifications.
A certificated aviation maintenance technician school must allow the FAA to inspect the school at any time to determine compliance with this part.
(c)
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Proposed rule.
This proposed rule would revise HUD's regulations that address property disposition. This rule proposes to consolidate and reorganize HUD's property disposition regulations so that they better reflect industry standards and allow HUD to conduct its Single Family Property Disposition Program more efficiently and more effectively so that HUD can obtain the greatest value for its real estate-owned (REO) properties in different market conditions.
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. All properly submitted comments and communications submitted to HUD will be 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, an appointment to review the public comments must be scheduled in advance 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 Federal Relay Service at 800–877–8339. Copies of all comments submitted are available for inspection and downloading at
Thomas Kumi, Director, Single Family Asset Management and Disposition Division, Office of Single Family Housing, Department of Housing and Urban Development, 451 7th Street SW., Room 9172, Washington, DC 20410–8000, telephone number 202–708–1672. Persons with hearing or speech impairments may access this number through TTY by calling the toll-free Federal Relay Service at 800–877–8339.
Section 204(g) of the National Housing Act (12 U.S.C. 1710g) addresses the management and disposition of HUD-acquired single family property, which includes HUD-acquired real and personal property assets. HUD's implementing regulations are codified in 24 CFR part 291 (currently entitled, “Disposition of HUD-Acquired Single Family Property”). Under these statutory and regulatory authorities, HUD is charged with carrying out a program of sales of HUD-acquired and owned properties along with appropriate credit terms and standards to be used in carrying out the program. Property owned by HUD as a result of acquisition includes REO. The goals of HUD's Single Family Property Disposition program are to reduce the inventory of single family properties in a manner that minimizes losses to the Mutual Mortgage Insurance Fund, promote the expansion of homeownership opportunities for American families by, among other things, selling such properties at a discount to state and local governments and HUD-approved nonprofit entities, and help stabilize distressed communities.
As a result of recent changes in the housing market, specifically the economic and housing crisis that commenced in 2008, HUD acquired an unprecedented number of REO properties—98,342, 90,943, 103,215 and 111,416 in FY 2010, FY 2011, FY 2012, and FY 2013 respectively. This increase caused FHA to reexamine its disposition strategy for HUD-acquired single family properties and determine that it needed to revise, consolidate and reorganize its property disposition regulations to facilitate the expeditious sale of REO properties acquired and provide greater efficiency in the administration of HUD's property disposition program. While part 291 addresses both HUD-acquired real and personal property assets, the focus of this proposed rule is on HUD's disposition of REO properties. FHA's intent is to bring its practices into
The proposed amendments to part 291 would make several changes to the administration of HUD's single-family property disposition program with respect to the disposition of REO properties. These changes seek to provide greater efficiency in the administration of HUD's property disposition program for REO properties, align FHA's regulatory authority with its business practices, and provide flexibility in anticipation of future changes to the property disposition program for REO properties. The following section of this preamble describes the changes to the property disposition process proposed by this rule.
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This proposed rule further clarifies that similar requirements apply to all of the GNND participants by making a parallel change to §§ 291.500, 291.525 and 291.530, which are the sections on purpose and purchaser qualifications, in general. This rule also adds a definition of “locality” to § 291.505, and uses that term in this proposed rule rather than “area,” which is the current terminology, to avoid repetitive language and confusion with the concept of a “revitalization area” used in codified § 291.510.
This proposed rule would revise the structure of § 291.5 to consolidate the definition for “Secretary” with the other definitions in this section.
Under Executive Order 12866 (Regulatory Planning and Review), a determination must be made whether a regulatory action is significant and therefore, subject to review by the Office of Management and Budget (OMB) in accordance with the requirements of the order. 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. The majority of the proposed changes to part 291 described above would streamline HUD's property disposition program by bringing its practices into conformance with industry standards and allowing HUD to administer its Single Family Property Disposition Program more efficiently and more effectively. These changes would not create additional significant burdens for the public. As a result, this rule was determined to not be a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and therefore was not reviewed by the Office of Management and Budget.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601
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 this preamble.
The information collection requirements contained in this proposed rule have been 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. The burden of information collection in this proposed rule is estimated as follows:
In accordance with 5 CFR 1320.8(d)(1), HUD is soliciting comments from members of the public and affected agencies concerning the information collection requirements in the proposed rule regarding:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Whether the proposed collection of information enhances the quality, utility, and clarity of the information to be collected; and
(4) Whether the proposed information collection minimizes the burden of the collection of information on those who are to respond including through the use of appropriate automated collection techniques or other forms of information technology (
Interested persons are invited to submit comments regarding the information collection requirements in this rule. Under the provisions of 5 CFR part 1320, OMB is required to make a decision concerning this collection of information between 30 and 60 days after the publication date. Therefore, a comment on the information collection requirements is best assured of having its full effect if OMB receives the comment within 30 days of the publication date. This time frame does not affect the deadline for comments to the agency on the proposed rule, however. Comments must refer to the proposal by name and docket number (FR–5776–P–01) and must be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503, Fax number: (202) 395–6947, and Colette Pollard, HUD Reports Liaison Officer, Department of Housing and Urban Development, 451 7th Street SW., Room 2204, Washington, DC 20410.
Interested persons may submit comments regarding the information collection requirements electronically through the Federal eRulemaking Portal at
A Finding of No Significant Impact (FONSI) with respect to environment has been made in accordance with HUD regulations at 24 CFR part 50, which implement section 102(2)(C) of National Environmental Policy Act (42 U.S.C. 4332(2)(C)). The Finding of No Significant Impact is available for public inspection between the hours of 8 a.m. and 5 p.m. weekdays in the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street SW., Room 10276, Washington, DC 20410. Due to security measures at the HUD Headquarters building, please schedule an appointment to review the FONSI 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.
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.
Community facilities, Conflict of interests, Homeless, Lead poisoning, Low and moderate income housing, Mortgages, Reporting and recordkeeping requirements, Surplus government property.
Accordingly, for the reasons stated in the preamble above, HUD proposes to amend 24 CFR part 291 as follows:
12 U.S.C. 1701
(a) * * *
(1) This part governs the acquisition, possession and disposition of one-to-four family properties acquired by the Federal Housing Administration (FHA) through foreclosure of an insured or Secretary-held mortgage or loan under the National Housing Act, or acquired by HUD under section 204(g) of the National Housing Act (12 U.S.C. 1710(g)). HUD will issue detailed policies and procedures that must be followed in specific areas.
The addition and revision to read as follows:
Terms used in this part are defined as follows:
In accordance with section 204(g) of the National Housing Act (12 U.S.C. 1710(g)), HUD will prescribe the terms and conditions for all methods of sale. HUD may dispose of assets using any method that the Secretary deems appropriate, including, but not limited to the following:
(a) * * *
(b)
(c)
(d)
(i)
(ii)
(B)
(iii)
(2) REO properties that have been identified as uninsurable in accordance with paragraph (c) of this section can be purchased and financed with a mortgage insured under section 203(k) of the National Housing Act (12 U.S.C. 1709(k)), subject to underwriting requirements supported by an FHA-specified appraisal and in accordance with 24 CFR 203.50.
(3) HUD, in its sole discretion, may take back purchase money mortgages (PMMs) on property purchased by governmental entities or private nonprofit organizations who buy property for ultimate resale to owner-occupant purchasers with incomes at or below 115 percent of the area median income. When offered by HUD, a PMM will be available in an amount determined by the Secretary to be appropriate, at market rate interest, for a period not to exceed 5 years. Mortgagors must meet FHA mortgage credit standards.
(i) For purposes of this section, the term “purchase money mortgage,” or
(ii) Except as provided in paragraph (d)(3) of this section, the purchaser is entirely responsible for obtaining financing for purchasing a property.
(e) * * *
(h) Any real estate broker who has agreed to comply with HUD requirements may be eligible to participate in the sales program. Purchasers participating in the competitive sales program, except government entities and nonprofit organizations, must submit bids through a participating broker. In accordance with section 204(g) of the National Housing Act (12 U.S.C. 1710(g)), HUD will prescribe the terms and conditions for all methods of listing properties. HUD may dispose of properties using any method that the Secretary deems appropriate, including, but not limited to the following:
(1)
(2)
(ii) In areas where a broker has an exclusive right to list properties, a purchaser may use a broker of his or her choice. The purchaser's broker must submit the bid through HUD's designated electronic bid system.
When HUD conducts competitive sales of individual properties to individual buyers, it will generally sell the properties on an “as-is” basis, without repairs or warranties, and it will follow the sales procedures provided in this section.
(b) * * *
(1) The net offer is calculated by subtracting from the bid price the dollar amounts for the financing and loan closing costs and the broker's sales commission, as described in paragraph (b)(2) of this section.
(2) If an owner-occupant purchaser of the property requests in the bid, HUD may pay all or a portion of the financing and loan closing costs, not to exceed the percentage of the purchase price determined appropriate by the Secretary for the area. In no event will the total amount for broker's sales commission exceed 6 percent of the purchase price, except for cash bonuses offered to brokers by HUD for the sale of hard-to-sell properties. No assistance for
(k) * * *
(1) The Secretary will make all winning bids available publicly.
(2) Successful bidders will be notified through their real estate brokers by electronic mail, mail, telephone, or other means. Acceptance of a bid is final and effective only upon HUD's execution of the sales contract, signed by both the submitting real estate broker and the prospective purchaser, and sending a copy of the executed contract by electronic mail to the successful bidder or the bidder's agent.
(l)
This subpart describes the policies and procedures governing the Good Neighbor Next Door (GNND) Sales Program. The purpose of the GNND Sales Program is to improve the quality of life in distressed urban communities. This is to be accomplished by encouraging law enforcement officers, teachers, and firefighters/emergency medical technicians to purchase and live in homes that are located in the same communities where they perform their daily responsibilities and duties.
For purposes of this subpart:
The addition reads as follows:
(c) The full time employment in paragraph (a) of this section must, in the normal course of business, directly serve the locality in which the home is located.
(b) The full time employment in paragraph (a) of this section must, in the normal course of business, serve students from the locality where the home is located.
A person qualifies as a firefighter/emergency medical technician for the purposes of the GNND Sales Program if the person is:
(a) Employed full-time as a firefighter or emergency medical technician by a fire department or emergency medical services responder unit of the federal government, a state, unit of general local government, or an Indian tribal government; and
(b) The full time employment in paragraph (a) of this section must, in the normal course of business, directly serve the locality where the home is located.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) proposes to grant full approval of Iowa's attainment demonstration State Implementation Plan (SIP) for the lead National Ambient Air Quality Standard (NAAQS) nonattainment area of Council Bluffs, Pottawattamie County, Iowa, received by EPA on February 9, 2015. The applicable standard addressed in this action is the lead NAAQS promulgated by EPA in 2008. EPA believes that the SIP submitted by the state satisfies the applicable requirements of the Clean Air Act, and will bring the designated portions of Council Bluffs, Iowa into attainment of the 0.15 microgram per cubic meter (ug/m
Comments must be received on or before November 2, 2015.
Submit your comments, identified by Docket ID No. EPA–R07–OAR–2015–0582, by one of the following methods:
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Stephanie Doolan, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551–7719, or by email at
Throughout this document “we,” “us,” or “our” refer to EPA.
In this document, EPA is addressing Iowa's attainment demonstration State Implementation Plan (SIP) for the lead National Ambient Air Quality Standard (NAAQS) nonattainment area in portions of Council Bluffs, Pottawattamie County, Iowa. The applicable standard addressed in this action is the lead NAAQS promulgated by EPA in 2008. EPA believes that the SIP submitted by the state satisfies the applicable requirements of the Clean Air Act (CAA) identified in EPA's Final Rule (73 FR 66964, October 15, 2008), and will bring the area into attainment of the 0.15 microgram per cubic meter (μg/m
The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.
EPA is proposing to grant full approval of Iowa's attainment demonstration SIP for the 2008 lead NAAQS. EPA is proposing this action in order to solicit comments. Final rulemaking will occur after consideration of any comments received.
EPA established the National Ambient Air Quality Standards (NAAQS) for lead on October 5, 1978 (43 FR 46246). On October 15, 2008, EPA established a new lead NAAQS of 0.15 μg/m
There are two lead-emitting sources contributing to the Council Bluffs lead nonattainment area: Griffin Pipe Products Company, L.L.C. (Griffin Pipe); and Alter Metal Recycling (Alter). A description of the operation of these two facilities is presented below.
Griffin Pipe manufactures ductile iron pressure pipe for potable water transmission and wastewater collection. The facility is classified as a gray iron foundry in accordance with the North American Industry Classification System (NAICS). Griffin Pipe is considered a major source for CAA Title V and Prevention of Significant Deterioration (PSD) permitting purposes.
Griffin Pipe's Council Bluffs facility covers more than 105,000 square feet and is located on a 19 acre site along the Missouri River bottoms. It produces ductile iron pressure pipe in 20 foot lengths and diameters ranging from six to 48 inches which are stored on the property until off-site shipment. There are paved haul routes on-site for the trucks that pick up the product for off-site transport. There is also a rail spur that traverses the south side of the property.
The hot iron required in the pipe manufacturing process is produced in a cupola. The cupola is charged with raw materials including coke, scrap iron, scrap steel, and fluxes. The scrap metal primarily comes from Alter Recycling which is located to the south of Griffin Pipe and is part of the nonattainment area, as discussed in paragraph V.A.2 below. After the molten iron leaves the cupola, it is treated in a desulfurization and magnesium inoculation processes. Desulfurization removes undesirable sulfur from the metal and magnesium inoculation uses magnesium to give the metal the physical properties needed to produce the ductile iron pipe. Lead present in the scrap metal is emitted as the metals are melted in the cupola, treated in the desulfurization and magnesium inoculation processes, and cast.
On December 7, 2010, the state issued a Prevention of Significant Deterioration (PSD) air permit to the facility. As a part of this permit, the facility installed air pollution controls in order to demonstrate that the facility met the Best Available Control Technology (BACT) criteria. Controls implemented in 2011 included: Replacement of the existing wet scrubber system for the cupola furnace with a baghouse; addition of a second baghouse to control emissions from the magnesium inoculation and desulfurization processes; and installation of two new chemical storage silos, one for a chemical that will be added to the gas stream after exiting cupola and before the baghouse for sulfur dioxide control, and the other for a chemical to be added to the gas stream for the treatment of
On May 3, 2014, Griffin Pipe ceased operations. The facility has notified IDNR that it intends to restart operations in the future; thus, the attainment demonstration SIP contains an Administrative Order on Consent between Griffin Pipe and IDNR that requires written notification to be provided to IDNR at least 60 days prior to the date that the Facility resumes operation, and contains control requirements that apply upon resumption of Facility operations.
Alter Metal Recycling is one of several scrap material processing center associated with Alter Trading Corporation, a privately held company with offices and processing centers across the central U.S. The Alter Recycling property occupies approximately 29 acres to the south and east of Griffin Pipe. The processing center receives scrap metal from a variety of sources, including used cars, and operates a shredder (hammer mill) to reduce the size of the incoming material. The facility is considered a minor source with regard to the State of Iowa's air permitting program. Lead emissions from Alter Recycling occur predominantly from fugitive emissions associated with vehicle traffic on facility roadways when lead-containing silt on roadways becomes airborne.
Iowa conducted air dispersion modeling to evaluate the effectiveness of the proposed control strategy. The model, AERMOD, was utilized and is EPA's preferred model for demonstrating attainment of the lead NAAQS. AERMOD estimates the combined ambient impact of sources by simulating Gaussian dispersion of emissions plumes. Emission rates, wind speed and direction, atmospheric mixing heights, terrain, plume rise from stack emissions, initial dispersion characteristics of fugitive sources, particle size and density are all factors considered by the model when estimating ambient impacts. Iowa performed five different dispersion modeling analyses for the 2008 lead NAAQS for the Council Bluffs nonattainment area. Two analyses were conducted to determine the cumulative impacts of both facilities under two operational configurations at Griffin Pipe, Options A and B, which are described below in greater detail. Three additional analyses were conducted to determine the impacts of Griffin Pipe under both Options A and B on Alter Recycling, and the impact of Alter Recycling on Griffin Pipe. The results of the analyses will be discussed in more detail in Section V.C. of this document.
Iowa used the surface and upper air meteorological data from the Omaha airport (KOMA) for years 2008 through 2012. EPA recommends the use of five years of meteorological data for the model (40 CFR part 51, appendix W, section 8.3.1.2). EPA conducted a review of the meteorological data used for the modeling and agreed with Iowa's determination that it is representative of meteorological conditions in the area of Griffin Pipe and Alter Recycling. The meteorological data were run through AERMOD's pre-processors to make the data usable by the model.
As required by Section 172(c)(3) of the CAA, a revised emission inventory was developed for this nonattainment area. Potential emissions rates for the point sources were developed from stack test data, process information, engineering assessment, and evaluation of the levels necessary to achieve attainment of the 2008 Pb NAAQS.
Iowa selected 2010 as the base year for lead emissions inputs to the model. As stated above, Griffin Pipe completed the installation of its emissions control projects under the PSD permit in 2011, so emissions estimates before these projects were completed are more representative of base case conditions. Emissions from 2010 also correlate with the meteorological data used to input the model. Emissions for the haul routes were based on calculated emission rates from silt data collected by sampling haul routes at both Griffin Pipe and Alter Recycling. The haul route emissions were based on conservative assumptions regarding haul route traffic and hours of operation over a one-year period. The emissions calculations for haul route traffic are provided in appendix A of the Attainment SIP which is available in the docket.
Point source emissions from Griffin Pipe occur primarily from melting metal, a hot iron desulfurization process, a magnesium inoculation process and metal casting. The melting process uses a cupola furnace that is charged with coke, scrap iron and steel, and fluxes (inert materials) as raw materials. As the materials are heated, melted and moved through the casting process, lead in the scrap is released and vented through stacks and roof vents. Emissions represented in the model are from release points, stack emissions validated by stack test data, and fugitive emissions calculated using field measurements wherever possible or estimated based on EPA's AP–42 guidelines.
Alter Recycling lead emissions were calculated by estimating the inbound and outbound truck traffic on haul routes on the facility's property. Other activities conducted by the facility that could potentially result in lead emissions, such as torch cutting and operation of the hammer mill, are estimated to be
Lead emissions estimates for base year 2010 are provided in Table 1 below. Note that haul route emissions provided are based on worst-case estimates and as such are likely overestimates.
In accordance with 40 CFR part 51, appendix W, background concentrations must be considered when determining NAAQS compliance. Background concentrations are intended to include impacts attributable to natural sources, nearby sources (excluding the dominant source(s)), and unidentified sources. The calculated background concentration includes all sources of lead not already included in the model run script. The background concentration includes distant sources of lead or naturally occurring lead in soils that has become re-entrained in the atmosphere.
The background value is calculated by averaging the monitored concentrations of lead in air from the monitor near the intersection of 8th Avenue and 27th Street in Council Bluffs, Iowa. The data included in the background calculation are those collected on days when the predominant wind direction was northerly (from the monitor toward the facility), originating from 270 to 90 degrees. The data when the predominant wind direction was blowing from the dominant sources toward the monitor were excluded from the background calculation. The calculated background value using the monitoring data is 0.01 µg/m
EPA conducted an independent analysis of the data from the monitor and corresponding wind direction to verify the background concentration calculated by Iowa. Based on its independent analysis, EPA agrees that the calculated value represents a conservative estimate of background during the study period.
The following describes the control strategy for each facility significantly contributing to the nonattainment area. The control strategy for Griffin Pipe is detailed in the Administrative Order on Consent, appendix B of the attainment SIP. The control strategy for Alter Metal Recycling is detailed in the Construction Permit issued to the facility, which is appendix C of the attainment SIP.
On May 3, 2014, Griffin Pipe ceased operations at its Council Bluffs facility. Because the shutdown occurred during the development of the attainment SIP, the state worked with the facility to develop and Administrative Order on Consent which outlines the requirements and options for the facility when it restarts operations at its Council Bluffs facility. At Griffin Pipe's request, the facility was given two options for control measures to comply with the lead NAAQS which are detailed in attachments A and B of the Administrative Consent Order between Iowa and Griffin Pipe. “Option A” consists of control measures in the form of emissions limits for point sources as follows:
For traffic pathways (haul routes), the emissions limit of 0.002 tons per rolling calendar quarter correlates to a lead silt loading content of 0.00016 g/m
Griffin Pipe requested “option B” which includes adding a baghouse. Adding an additional baghouse to capture desulfurization (EU–2) and bull
In “option B,” the emissions limit of 0.004 tons per rolling calendar quarter correlates to a lead silt loading content of 0.00032 g/m
Both options contain the same performance testing and work practices requirements, including,
(1) The total production rate shall not exceed 235,150 tons of metal charged per rolling 12-month period.
(2) Bulk material shipment or deliveries of product, waste and raw materials shall only occur from 7 a.m. to 5 p.m. daily.
(3) Standard Operating Procedures (SOPs) for work practices to minimize emissions from the cupola charge handling (EU–17) and the scrap management plan for minimizing the amount of lead introduced to process as charge material are included as attachments to the Administrative Order on Consent between Griffin Pipe and Iowa.
(4) Limitations on public access to the facility at all property boundary lines.
(5) Fugitive dust control by sweeping all paved truck traffic routes once per day using a Tymco DST–4 Sweeper or functional equivalent as approved by the state. The Tymco DST–4 Sweeper is equipped with a HEPA filter to capture lead-contaminated particulates rather than emitting them to ambient air. Sweeping is required to begin within seven days after resuming operations. Exceptions to the sweeping are as follows:
a. If sweeping cannot be accomplished due to daytime ambient air temperatures less than 35 degrees F or weather that creates hazardous driving conditions, then the sweeping shall be postponed and resume as soon after the scheduled date as the conditions preventing the sweeping have abated.
b. Paved road sweeping need not occur when a rain gauge located at the site indicates that at least 0.2 inches of precipitation (water equivalent) has occurred within the preceding 24-hour time period. However road sweeping shall resume within 24-hours after the precipitation event has ended.
c. Paved road sweeping need not occur when the facility experiences no production or shipping activities on that calendar day.
(6) If sweeping cannot be accomplished for the entire month due to low ambient temperatures or hazardous weather, silt load testing is not required for that month.
(7) In addition to the emissions limits for traffic pathways listed for “option A” and “option B” above, surface total silt loading or lead silt loading on the traffic pathways shall not exceed 0.64 g/m
(8) Silt load sampling conducted at a minimum of three locations representative of normal conditions and not within four hours of sweeping.
(9) The owner or operator shall take reasonable precautions to prevent the discharge of visible emissions of fugitive dust beyond the lot line of the property.
When Griffin Pipe seeks to resume operations, it is required to provide at least a sixty day notice to the state and adhere to all permitting and/or obligations of the Administrative Order on Consent prior to restarting operations.
At Alter Metal Recycling, the control strategy to attain the 2008 Lead NAAQS consists of a lead limit in silt for traffic pathways (
Other operating limits in Alter Metal Recycling's permit include:
(1) The facility must complete paving of haul routes identified by the Construction Permit (appendix C of the attainment SIP) as segments 7, 14, 15 and 16 by October 31, 2015. By this same date, the facility also must cease the use of haul road segment 17.
(2) Fugitive dust control by sweeping all paved truck traffic routes once per day using a Tymco DST–4 Sweeper or functional equivalent as approved by the state. Sweeping is required to begin within seven days after resuming operations. Exceptions to the sweeping are as follows:
a. If sweeping cannot be accomplished due to daytime ambient air temperatures less than 35 degrees F or weather that creates hazardous driving conditions, then the sweeping shall be postponed and resume as soon after the scheduled date as the conditions preventing the sweeping have abated.
b. Paved road sweeping need not occur when a rain gauge located at the site indicates that at least 0.2 inches of precipitation (water equivalent) has occurred within the preceding 24-hour time period. However road sweeping shall resume within 24-hours after the precipitation event has ended.
c. Paved road sweeping need not occur when the facility experiences no production or shipping activities on that calendar day.
(3) If sweeping cannot be accomplished for the entire month due to low ambient temperatures or hazardous weather, silt load testing is not required for that month.
(4) The haul road surface silt loading shall not exceed 2.70 g/m
(5) The facility is limited to shipping (inbound and outbound) material between the hours of 5 a.m. to 8 p.m., Monday through Friday, and 8 a.m. to 12 p.m. on Saturday. The facility is also limited to processing and shipping (inbound and outbound) no more than 946,000 tons of material per rolling 12-month period. Internal transfers at the facility are limited to Monday through Friday.
(6) The facility is required to implement “Best Management Practices” including clean up spills as expeditiously as possible, weekly cleanup of truck area scales and process buildings, and “good housekeeping” to minimize fugitive dust emissions. The facility is also requires to post and maintain speed limit signs.
(7) The facility is required to limit public access posting signs at all facility boundaries that are not fenced. During days when the facility is operating, in-person surveillance shall be conducted and recorded by the facility. In lieu of in-person surveillance, the facility may maintain and operate equipment adequate to ensure surveillance of the boundary shared with the rail line.
D. Modeling Results
Iowa modeled five different cases to evaluate lead NAAQS compliance:
(1) The first case models combined impacts of both facilities on ambient air with Griffin Pipe operating under the “option A” control strategy described above;
(2) The second case models combined impacts of both facilities with Griffin Pipe operating under the “option B” control strategy described above;
(3) The third case models the impact of Griffin Pipe's lead emissions on Alter Metal Recycling with Griffin Pipe operating under the “option A” control strategy;
(4) The fourth case models the impact of Griffin Pipe's lead emissions on Alter Metal Recycling under the “option B” control strategy; and
(5) The fifth case models the impacts of Alter Metal Recycling's lead emissions on Griffin Pipe.
In all the modeling runs described above the Alter Metal Recycling control strategy remained the same as described in paragraph C.2 above.
The total impact of the combined lead emissions from both facilities with Griffin Pipe operating under “option A” was 0.149 µg/m
EPA reviewed and independently verified the modeling conducted by Iowa. Based on EPA's analysis of the attainment modeling and its outcomes, EPA believes that Iowa's control strategy, whether it includes “option A” or “option B” for Griffin Pipe, will bring the designated portions of Pottawattamie County, Iowa, into attainment of the 2008 Lead NAAQS.
Section 172(c)(1) of the CAA requires nonattainment areas to implement all RACM, including emissions reductions through the adoption of RACT, as expeditiously as practicable. EPA interprets this as requiring all nonattainment areas to consider all available controls and to implement all measures that are determined to be reasonably available, except that measures which will not assist the area to more expeditiously attain the standard are not required to be implemented.
Section 172(c)(2) of the CAA requires areas designated as nonattainment for criteria pollutants to include a demonstration of Reasonable Further Progress (RFP) in attainment demonstrations. Section 171(1) of the CAA defines RFP as annual incremental reductions in emissions of the relevant air pollutants as required by part D, or emission reductions that may reasonably be required by EPA to ensure attainment of the applicable NAAQS by the applicable date. Part D does not include specific RFP requirements for lead.
EPA recommends a RACT analysis for facilities emitting 0.5 tpy lead per year or more. (73 FR 66964). As listed in Table 1 above, in the base year for modeling, 2010, Griffin Pipe and Alter Metal Recycling emitted 1.0382 and 0.7182 tons per year, respectively. Thus, both facilities exceeded the threshold for determining RACT to comply with the 2008 Lead NAAQS. Section 4 of the lead attainment SIP details Iowa's RACT/RACM analysis by facility and point or fugitive emissions sources considered.
Iowa performed a RACT/RACM analysis in compliance with the RACM Guidance. As stated in the final lead NAAQS rule, RFP is satisfied by the strict adherence to a compliance schedule which is expected to periodically yield significant emission reductions. Iowa has determined that either control strategy for Griffin Pipe under “option A” or “option B” as described above, combined with the control strategy for Alter Metal Recycling, constitutes RACM. The control measures including operational controls and work practices described in paragraph V.C above have been modeled and demonstrated to achieve the lead NAAQS and also comply with RACM and RFP.
RFP is addressed by the control strategy occurring in a timeframe consistent with the CAA. Upon implementation of the control strategy and practices described above, ambient air quality concentrations are expected to drop at or below attainment levels immediately. The nonattainment area's ambient air quality monitor began reporting lead concentrations below the 2008 lead NAAQS for the three-month
Alter Metal Recycling began implementing its control measures by paving previously unpaved haul routes and sweeping with street sweeper equipped with a HEPA filter to remove lead-contaminated silt from the roadway. There are no point source lead emissions from the Alter Metal Recycling facility operations, only fugitive emissions from lead-contaminated silt on haul routes, the appropriate RACT is to significantly reduce fugitive emissions. The attainment SIP proposes a 95 percent reduction in fugitive lead emissions from sweeping all paved haul routes at the facility.
Based on the RACM analysis and the combined reduction in lead emissions to meet the 2008 Lead NAAQS, which demonstrates RFP, EPA proposes to approve Iowa's SIP as meeting the requirements of sections 172(c)(1) and (c)(2) of the CAA.
CAA section 172 requires a state to submit a plan for each of its nonattainment areas that demonstrates attainment of the applicable ambient air quality standard as expeditiously as practicable, but no later than the specified attainment date. This demonstration should consist of four parts: (1) Technical analyses that locate, identify, and quantify sources of emissions that are contributing to violations of the lead NAAQS; (2) analyses of future year emissions reductions and air quality improvement resulting from already-adopted national, state, and local programs and from potential new state and local measures to meet the RACT, RACM, and RFP requirements in the area; (3) adopted emissions reduction measures with schedules for implementation and (4) contingency measures required under section 172(c)(9) of the CAA.
The requirements for the first two parts are described in the sections on emissions inventories, RACT/RACM and air quality above and in the discussion of the attainment demonstration that follows immediately below. Requirements for the third and fourth parts are described in the sections on the control strategy and the contingency measures, respectively.
The future case dispersion modeling is the attainment demonstration used to verify that the proposed control strategies will bring the area into attainment of the 2008 Lead NAAQS. In order to determine whether the planned emission reduction strategies will result in attainment of the NAAQS, the modeled maximum lead concentration in ambient air (based on a rolling three-month average) are added to the calculated background lead concentration of 0.01 µg/m
Within the CAA, Section 172(c)(5) refers to permits for construction and operation of new and modified major sources located within the nonattainment area. A special permitting process applies to such sources, referred to as a nonattainment new source review program. Section 173 of the CAA mandates nonattainment new source review and an approved state SIP must meet the requirements of 40 CFR part 51.165. On May 15, 2014 (79 FR 277763), EPA approved into Iowa's SIP the nonattainment new source review regulations which are found in 567—Iowa Administrative Code (IAC) chapter 33. The modified administrative rules in chapter 33 became effective on January 15, 2014.
As required by CAA section 172(c)(9), the SIP submittal includes contingency measures to be implemented if EPA determines that the area has failed to make RFP or if the area fails to attain the NAAQS by December 2016. If the air quality data for any three-month rolling period after the implementation of the control measures identified in both the Administrative Consent Order between Iowa and Griffin Pipe or the construction permit for Alter Metal Recycling exceeds the 0.15 ug/m
The Administrative Consent Order for Griffin Pipe provided as appendix B of the attainment SIP contains the following contingency measures which apply to the facility under both control strategies for “option A” and “option B”:
(1) After November 30, 2014, the owner or operator shall increase the frequency of cleaning/sweeping of the haul roads to twice per day within seven days after notification by Iowa that a monitored exceedance has occurred. The owner operator shall also submit sweeping data to the state and continue daily cleaning/sweeping until notified by the state that a different cleaning/sweeping frequency shall be used.
(2) After November 30, 2014, the owner or operator shall implement good housekeeping practices on paved haul road surfaces within seven days after notification by the state that a monitored exceedance of the lead NAAQS occurred during months in which the inclement weather provision as specified in the control strategy described in V.C(5)(a) above applied. The good housekeeping practices shall include but are not limited to daily removal of material piles that have accumulated on haul road surfaces and decreasing vehicle speeds on paved road surfaces from fifteen miles per hour (mph) to five mph. The owner or operator shall continue good housekeeping practices on paved road surfaces until paved road sweeping resumes.
(3) If a monitored exceedance of the lead NAAQS occurs after the provisions of the above contingency measures have been implemented for three full calendar months the owner or operator will submit an emissions evaluation meeting the criteria and timeline specified by the state.
For Alter Metal Recycling, the following contingency measures contained in section 14, item L of the facility's construction permit apply:
(1) After November 30, 2014, the facility shall increase the frequency of cleaning/sweeping of the haul roads to daily within seven days after notification by the state that a monitored exceedance of the lead NAAQS occurred. The facility shall submit data to the state and continue
(2) If a monitored exceedance of the lead NAAQS occurs after the provisions of the above contingency measure have been implemented for three full calendar months,
Alter Metal Recycling shall submit an emissions evaluation meeting the criteria and timeline specified by the state.
These measures will help ensure compliance with the 2008 lead NAAQS as well as meet the requirements of section 172(c)(9) of the CAA.
EPA proposes to approve Iowa's SIP as meeting the requirements of section 172(c)(9) of the CAA.
As specified in section 172(c)(6) and section 110(a)(2)(A) of the CAA, and 57 FR 13556, all measures and other elements in the SIP must be enforceable by the state and EPA. The enforceable documents included in Iowa's SIP submittal are the Administrative Consent Order between Iowa and Griffin Pipe dated January 29, 2015, and the construction permit for Alter Metal Recycling dated September 2, 2014. These documents contain all control and contingency measures with enforceable dates for implementation. Upon EPA approval of the SIP submission, the Administrative Consent Order for Griffin Pipe and the construction permit for Alter Metal Recycling will become Federally enforceable, and enforceable by citizens under section 304 of the CAA.
EPA proposes to approve Iowa's SIP as meeting the requirements of sections 172(c)(6) and 110(a)(2)(A) of the CAA, and 57 FR 13556.
EPA is proposing to grant full approval of Iowa's attainment demonstration SIP for the Pottawattamie County 2008 lead NAAQS nonattainment area. EPA believes that the SIP submitted by the state satisfies the applicable requirements of the CAA identified in EPA's Final Rule (73 FR 66964, October 15, 2008), and will result in attainment of the 0.15 ug/m
In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the proposed amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available electronically through
Under the Clean Air Act (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 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).
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
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 December 1, 2015. Filing a petition for reconsideration by the Administrator of this proposed rule does not affect the finality of this rulemaking 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
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.
For the reasons stated in the preamble, EPA proposes to amend 40 CFR part 52 as set forth below:
42 U.S.C. 7401
The additions read as follows:
(d) * * *
(e) * * *
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) proposes to approve the State Implementation Plan (SIP) revision submitted by the Commonwealth of Pennsylvania for the purpose of meeting the statutory emissions inventory requirements for the Liberty-Clairton nonattainment area (hereafter “the Liberty-Clairton Area” or “the Area”) with respect the 2006 24-hour fine particulate matter (PM
Comments must be received in writing by November 2, 2015.
Submit your comments, identified by Docket ID Number EPA–R03–OAR–2015–0470 by one of the following methods:
A.
B.
C.
D.
Emlyn Vélez-Rosa, (215) 814–2038, or by email at
For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the State Implementation Plan (SIP) submitted by the State of Missouri relating to the Ten Year Limited Maintenance Plan for the St. Louis area for the 8-Hour Carbon Monoxide (CO) National Ambient Air Quality Standard (NAAQS). On April 8, 2014, the Missouri Department of Natural Resources (MDNR) submitted to EPA a second 10-year maintenance plan for the St. Louis area for the CO NAAQS. This maintenance plan addresses maintenance of the CO NAAQS for a second 10-year period beyond the original redesignation. In accordance with the requirements of the Clean Air Act (CAA), EPA is approving the revision because the State adequately demonstrates that the St. Louis Maintenance area will maintain air quality standards for CO through the year 2022.
Comments on this proposed action must be received in writing by November 2, 2015.
Submit your comments, identified by Docket ID No. EPA–R07–OAR–2015–0513, by mail to Steven Brown, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219. Comments may also be submitted electronically or through hand delivery/courier by following the detailed instructions in the
Steven Brown, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at 913–551–7718, or by email at
In the final rules section of the
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.
Federal Communications Commission.
Petition for reconsideration.
Petitions for Reconsideration (Petitions) have been filed in the Commission's Rulemaking proceeding by Bruce Oberlies, on behalf of Wireless Innovation Forum; Jon M. Peha on behalf of Jon M. Peha; Chuck Powers, on behalf of Motorola Solutions, Inc.; Brian M. Josef, on behalf of CTIA–THE WIRELESS ASSOCIATION; John T. Scott, III, on behalf of Verizon; Tom Stroup, on behalf of Satellite Industry Association; Rick Kaplan, on behalf of NATIONAL ASSOCIATION OF BROADCASTERS; and Brian Hendricks, on behalf of Nokia Networks (D/B/A Nokia Solutions and Network US LLC).
Oppositions to the Petitions must be filed on or before October 19, 2015. Replies to an opposition must be filed on or before October 13, 2015.
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.
Paul Powell, Wireless Telecommunications Bureau, (202) 418–1613, email:
This is a summary of Commission's document, Report No. 3029, released September 22, 2015. The full text of the Petitions is available for viewing and copying in Room CY–B402, 445 12th Street SW., Washington, DC or may be accessed online via the Commission's Electronic Comment Filing System at
Federal Communications Commission.
Proposed rule; extension of comment and reply deadlines.
In this document, the Federal Communications Commission's (Commission's) Wireline Competition Bureau (Bureau) further extends the deadlines for interested parties to submit comments and reply comments in response to Section IV.B of the Further Notice of Proposed Rulemaking (
The comment period for the proposed rule published January 11, 2013 (78 FR 2600), has been further extended. Comments are due on or before November 20, 2015; reply comments are due on or before December 11, 2015.
Federal Communications Commission, 445 12th Street SW., Washington, DC 20554.
Christopher Koves, Pricing Policy Division, Wireline Competition Bureau, 202–418–8209 or
This is a summary of the Commission's document, WC Docket No. 05–25, RM–10593, DA 15–1037, released September 17, 2015. This document does not contain information collection(s) subject to the Paperwork Act of 1995 (PRA), Public Law 104–13. In addition, therefore, it does not contain any new or modified “information collection burden[s] for small business concerns with fewer than 25 employees,” pursuant to the Small Business Paperwork Relief Act of 2002. The full text of this document may be downloaded at the following Internet address:
On September 17, 2015, the Bureau released a public notice extending the deadlines for filing comments and reply comments in response to Section IV.B of the
Federal Communications Commission.
Proposed rule.
In this document, the Commission seeks comment on potential updates to the “totality of the circumstances test” for evaluating whether broadcast stations and multichannel video programming distributors (“MVPDs”) are negotiating for retransmission consent in good faith. The document seeks comment generally on the totality of the circumstances test, including whether and how the Commission should update that test. The document also seeks comment on whether there are specific practices that the Commission should identify as evidencing bad faith under the totality of the circumstances test.
Comments are due on or before December 1, 2015; reply comments are due on or before December 31, 2015.
You may submit comments, identified by MB Docket No. 15–216, by any of the following methods:
•
•
•
•
For detailed instructions for submitting comments and additional information on the rulemaking process, see the
For additional information on this proceeding, contact Diana Sokolow or Raelynn Remy of the Policy Division, Media Bureau at (202) 418–2120 or
This is a summary of the Commission's Notice of Proposed Rulemaking, FCC 15–109, adopted and released on September 2, 2015. The full text is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW., Room CY–A257, Washington, DC 20554. This document will also be available via ECFS at
1. By this Notice of Proposed Rulemaking (
2. Congress created the retransmission consent regime in 1992 “to establish a marketplace for the disposition of the rights to retransmit broadcast signals,” but not “to dictate the outcome of the ensuing marketplace negotiations.”
The second part of the test is a totality of the circumstances standard. Under this standard, an MVPD may present facts to the Commission which, even though they do not allege a violation of the objective standards, given the totality of the circumstances reflect an absence of a sincere desire to reach an agreement that is acceptable to both parties and thus constitute a failure to negotiate in good faith. We do not intend the totality of the circumstances test to serve as a `back door' inquiry into the substantive terms negotiated between the parties. While the Commission will not ordinarily address the substance of proposed terms and conditions or the terms of actual retransmission consent agreements, we will entertain complaints under the totality of the circumstances test alleging that specific retransmission consent proposals are sufficiently outrageous, or evidence that differences among MVPD agreements are not based on competitive marketplace considerations, as to breach a broadcaster's good faith negotiation obligation. However, complaints which merely reflect commonplace disagreements encountered by negotiating parties in the everyday business world will be promptly dismissed by the Commission.
3. Since Congress's enactment of Section 325, we have seen significant changes in the retransmission consent marketplace that have altered the negotiation dynamics between broadcasters and MVPDs. For example, whereas broadcasters in the past typically negotiated with MVPDs for in-kind compensation, broadcasters have increasingly sought and received monetary compensation in exchange for retransmission consent.
4. In March 2014, the Commission, in a separate proceeding regarding retransmission consent, adopted an order strengthening its retransmission consent rules to provide that joint negotiation by stations that are ranked among the top four stations in a market as measured by audience share and are not commonly owned constitutes a per se violation of the good faith negotiation requirement.
5. In addition to the joint negotiation provision, Section 103 requires the Commission to take certain further actions related to retransmission consent. First, Section 103 revised Section 325 of the Act to “prohibit a television broadcast station from limiting the ability of a[n MVPD] to carry into the local market . . . of such station a television signal that has been deemed significantly viewed . . . unless such stations are directly or indirectly under common de jure control permitted by the Commission.”
6. In accordance with Congress's directive in Section 103(c) of STELAR, we seek comment below on any potential updates we should make to the totality of the circumstances test to ensure that the conduct of broadcasters and MVPDs during negotiations for retransmission consent and after such negotiations have broken down meet the good faith standard in Section 325 of the Act.
7. First, we ask whether there is a need to update the totality of the circumstances test. How is the retransmission consent market currently functioning? Is there a market failure, and if so, what is its source? Are there issues with the current totality of the circumstances test that warrant change? We seek comment on this. We invite comment on any elaboration of the totality of the circumstances test we can provide that will help to guide negotiations to a successful conclusion. Section 76.65(b)(2) of our rules permits a party to a retransmission consent negotiation to “demonstrate, based on the totality of the circumstances of a particular retransmission consent negotiation, that [the other party] breached its duty to negotiate in good faith.”
8. How effective has our totality of the circumstances test been? Although it was originally designed to give the Commission flexibility to take account of any unique facts underlying a particular retransmission consent dispute, should we modify the test to make it more specific? Is it possible to maintain the flexibility of the totality of the circumstances test, while at the same time giving additional guidance to the parties to retransmission consent negotiations about certain conduct that we consider evidence of bad faith negotiation? When we last sought comment on this issue in 2011,
9. Section 325 of the Act provides, among other things, that “it shall not be a failure to negotiate in good faith if the television broadcast station enters into retransmission consent agreements containing different terms and conditions, including price terms, with different [MVPDs] if such different terms and conditions are based on competitive marketplace considerations.”
1. Proposals for compensation above that agreed to with other MVPDs in the same market;
2. Proposals for compensation that are different from the compensation offered by other broadcasters in the same market;
3. Proposals for carriage conditioned on carriage of any other programming, such as a broadcaster's digital signals, an affiliated cable programming service, or another broadcast station either in the same or a different market;
4. Proposals for carriage conditioned on a broadcaster obtaining channel positioning or tier placement rights;
5. Proposals for compensation in the form of commitments to purchase advertising on the broadcast station or broadcast-affiliated media; and
6. Proposals that allow termination of retransmission consent agreement based on the occurrence of a specific event, such as implementation of SHVIA's satellite must carry requirements.
10. The Commission also previously stated that “[c]onsiderations that are designed to frustrate the functioning of a competitive market are not `competitive marketplace considerations.' ”
1. Proposals that specifically foreclose carriage of other programming services by the MVPD that do not substantially duplicate the proposing broadcaster's programming;
2. Proposals involving compensation or carriage terms that result from an exercise of market power by a broadcast station or that result from an exercise of market power by other participants in the market (
3. Proposals that result from agreements not to compete or to fix prices; and
4. Proposals for contract terms that would foreclose the filing of complaints with the Commission.
11. The Commission explained that these examples are illustrative and are not intended to be exclusive of other bargaining proposals that may be inconsistent with competitive marketplace considerations.
12. We seek comment on whether there are specific practices that we should identify as evidencing bad faith negotiation under the totality of the circumstances test. Do broadcasters or MVPDs engage in particular conduct or demand types of contract terms that we should consider as evidence of bad faith under the totality of the circumstances test? Commenters that advocate the inclusion of additional conduct and/or practices under the totality of the circumstances test should explain the legal and policy bases for a Commission finding that such conduct and/or practices are evidence of bad faith or should be deemed presumptively inconsistent with competitive marketplace considerations. Interested parties have identified a number of practices that broadcasters or MVPDs have engaged in during retransmission consent negotiations (or after a breakdown in negotiations) that, they assert, evidence bad faith under the totality of the circumstances test. We discuss those practices below.
13. First, parties have urged the Commission to address the practice by broadcasters of preventing consumers' online access to the broadcaster's programming as an apparent tactic to gain leverage in a retransmission consent dispute.
14. In addition to broadcasters preventing online access, parties have expressed concern about broadcasters' relinquishing to third parties their right to grant retransmission consent and similar practices. For example, should certain network involvement in retransmission consent negotiations be a factor suggesting bad faith under the totality of the circumstances test? We understand that some network affiliation agreements give the network the right to approve its affiliate's retransmission consent agreement with an MVPD, and some MVPDs and consumer groups have argued that this practice has hindered the progress of retransmission consent negotiations. What are the appropriate parameters of network involvement in retransmission consent negotiations? Would it be appropriate for a network to negotiate on behalf of its affiliates, and if so, to what extent? Should it be considered evidence of bad faith for a broadcaster to give any third party the right to approve its retransmission consent agreement? As noted, the statute now precludes joint negotiation by non-commonly owned stations in the same local market;
15. We also invite comment on how a broadcaster's insistence on bundling broadcast signals with other broadcast stations or cable networks into the retransmission consent agreement should be treated under the totality of the circumstances test. We note that early retransmission consent agreements typically provided for noncash payment to broadcasters in the form of carriage of additional programming. If a broadcaster requires MVPDs to purchase less popular programming in order to purchase more desired programming, the MVPDs may be forced to pay for programming that they do not want and may in turn pass those costs onto consumers. And while broadcasters and other programmers sometimes offer MVPDs both a bundled price and standalone prices for particular programming, some MVPDs assert that the prices for the standalone options may be so high that the only economically sound option is to accept the bundled offer. Although the Commission, in the Good Faith Order, concluded that the bundling of broadcast and non-broadcast programming in retransmission consent agreements is a practice that is presumptively consistent with good faith bargaining,
16. Parties have identified a number of other negotiating practices that, they assert, are inconsistent with the statutory duty to bargain in good faith. We seek comment on whether any of these practices should factor into our assessment of whether a negotiating entity has breached its duty to negotiate in good faith under the totality of the circumstances test. In particular, parties assert that the following practices raise concerns about whether a party has met its obligation to negotiate retransmission consent in good faith: (i) A broadcaster's insistence on contract expiration dates, or threats to black out a station signal, in the time period just prior to the airing of a “marquee” sports or entertainment event;
17. How, if at all, should any of the above practices figure into our assessment of whether the broadcaster or MVPD has breached its duty to negotiate retransmission consent in good faith under the totality of the circumstances test? With regard to the second practice noted above (concerning importation of distant broadcast signals), we note that there could be situations where an MVPD is denied the right to carry a significantly viewed signal by a distant broadcast station that is precluded from granting out-of-market carriage of its signal due to restrictions in a network affiliation agreement.
18. We note that although most of the alleged bad faith practices discussed in this
19. Finally, we invite comment on how an MVPD's demand for online distribution rights, or a broadcaster's refusal to grant such rights, should be treated under the totality of the circumstances test. Online distribution rights are important because consumers today are increasingly accessing video programming from online video distributors that deliver content via the Internet. We understand that online distribution rights have been a critical factor in recent retransmission consent negotiations. Are there any circumstances in which an MVPD's demands with respect to online rights, or a broadcaster's unwillingness to offer such rights, should be considered evidence of bad faith under the totality of the circumstances test?
20. In the alternative to considering any of the above factors, or additional factors that commenters raise, pursuant to the totality of the circumstances test,
21. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”),
22. In the Notice of Proposed Rulemaking (“
23. The proposed action is authorized pursuant to Sections 4(i), 4(j), 303(r), and 325 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), 154(j), 303(r), and 325, and Section 103 of the STELA Reauthorization Act of 2014, Public Law 113–200, Section 103, 128 Stat. 2059 (2014).
24. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules, if adopted.
25.
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27.
28.
29.
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32.
33. In addition, the SBA's placement of Cable Television Distribution Services in the category of Wired Telecommunications Carriers is applicable to cable-based EBS. Since 2007, Cable Television Distribution Services have been defined within the broad economic census category of Wired Telecommunications Carriers; that category is defined as follows: “This industry comprises establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services; wired (cable) audio and video programming distribution; and wired broadband Internet services.”
34.
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41. The Commission has estimated the number of licensed commercial television stations to be 1,390.
42. In addition, an element of the definition of “small business” is that the entity not be dominant in its field of operation. We are unable at this time to define or quantify the criteria that would establish whether a specific television station is dominant in its field of operation. Accordingly, the estimate of small businesses to which rules may apply do not exclude any television station from the definition of a small business on this basis and are therefore over-inclusive to that extent. Also, as noted, an additional element of the definition of “small business” is that the entity must be independently owned and operated. We note that it is difficult at times to assess these criteria in the context of media entities and our estimates of small businesses to which they apply may be over-inclusive to this extent.
43. Apart from the U.S. Census, the Commission has estimated the number of licensed commercial television stations to be 1,388.
44. We note, however, that, in assessing whether a business concern qualifies as small under the above definition, business (control) affiliations
45. In addition, the Commission has estimated the number of licensed noncommercial educational (NCE) television stations to be 396.
46. The
47. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance, rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities.”
48. Enhancing the successful completion of retransmission consent negotiations would benefit both broadcasters and MVPDs, including those that are smaller entities, as well as MVPD subscribers. Given that improvements to the totality of the circumstances test would have such an effect, making such improvements would benefit both smaller and larger entities, and thus an analysis of alternatives is unnecessary. We note additionally that the
49. None.
50. This
51. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules.
52.
• Electronic Filers: Comments may be filed electronically using the Internet by accessing the ECFS:
• Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.
Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.
• All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW., Room TW–A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of
• Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9300 East Hampton Drive, Capitol Heights, MD 20743.
• U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW., Washington, DC 20554.
53.
54.
55.
56.
57.
Animal and Plant Health Inspection Service, USDA.
Revision to and extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request a revision to and extension of approval of an information collection associated with the regulations for the importation of pork-filled pasta products into the United States.
We will consider all comments that we receive on or before December 1, 2015.
You may submit comments by either of the following methods:
• Federal eRulemaking Portal: Go to
• Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS–2015–0060, Regulatory Analysis and Development, PPD, APHIS, Station 3A–03.8, 4700 River Road, Unit 118, Riverdale, MD 20737–1238.
Supporting documents and any comments we receive on this docket may be viewed at
For information on the regulations for the importation of pork-filled pasta products, contact Dr. Magde S. Elshafie, Staff Veterinarian, National Import Export Services, VS, APHIS, 4700 River Road, Unit 40, Riverdale, MD 20737; (301) 851–3332. For copies of more detailed information on the information collection, contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851–2727.
The regulations in 9 CFR part 94 (referred to below as the regulations) prohibit or restrict the importation of specified animals and animal products into the United States to prevent the introduction into the U.S. livestock population of certain contagious animal diseases, including swine vesicular disease (SVD). Section 94.12 of the regulations contains, among other things, specific processing, recordkeeping, and certification requirements for pork-filled pasta products exported to the United States from regions affected with SVD.
The regulations require, among other things, that the pork-filled pasta products be accompanied by a certificate stating that the product has been handled and processed according to the requirements set forth in the regulations. This certificate must be issued and signed by an official of the national government of the region in which the pork-filled pasta products were processed.
In addition, the processing facility where the pork-filled pasta products are produced must maintain original records for a minimum of 2 years for each lot of pork or pork products used. The records must include the date the cooked or dry-cured pork product was received in the processing facility, the lot number or other identification marks, the health certificate that accompanied the cooked or dry-cured pork from the slaughter/processing facility to the meat-filled pasta product processing facility, and the date the pork or pork product used in the pasta either started dry-curing (if the product used is a dry-cured ham) or the date the product was cooked (if the product used is a cooked pork product). The records must also include the number of packages, the number of hams or cooked pork products per package, and the weight of each package. These records would provide important information in any traceback investigation that may need to be conducted by officials of the region of origin of the pork-filled pasta product or by officials of the USDA.
The information collection activities of a certificate and recordkeeping were approved by the Office of Management and Budget (OMB) under control number 0579–0214. However, when comparing the regulations with the information collection activities, we found that cooperative service agreement and signage were omitted from previous information collections. The operator of a foreign processing establishment must enter into a cooperative service agreement with APHIS stating that: (1) The establishment agrees to process pork in accordance with the regulations; (2) the establishment will allow APHIS representatives unannounced entry into the establishment to inspect the facility, operations, and records of the establishment; and (3) the establishment will pay for the costs of the associated inspections and be current on the payments. Also, any storage room area reserved for pork or pork products eligible for export to the United States must, among other things, be marked by signs. These additions have increased the estimated annual number of
We are asking OMB to approve our use of these information collection activities, as described, for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
Notice.
The Animal and Plant Health Inspection Service (APHIS), in coordination with U.S. Customs and Border Protection (CBP), has developed a pilot plan to test and assess the International Trade Data System for the electronic submission of data required by APHIS Animal Care, Biotechnology and Regulatory Services, Plant Protection and Quarantine, and Veterinary Services for processing in the Automated Commercial Environment (ACE). The pilot test will use the APHIS Partner Government Agency (PGA) Message Set and the Automated Broker Interface to transmit, and ACE to process, trade data required for the importation of plants, animals, and their products regulated by APHIS. Under this test, PGA Message Set data may be filed only at certain ports.
The test will commence no earlier than October 2, 2015, and will continue until concluded by publication of a notice ending the test. Participants should consult the PGA Pilot Rollout Plan, available at
You may submit comments by the following methods:
•
•
•
For technical questions related to the Automated Commercial Environment or Automated Broker Interface transmissions, contact your assigned CBP client representative. Interested parties without an assigned client representative should direct their questions to Mr. Steven Zaccaro, U.S. Customs and Border Protection, DHS, 1400 L Street NW., 2nd floor, Washington, DC 20229–1225;
For PGA-related questions, contact Ms. Emi Wallace, U.S. Customs and Border Protection, DHS, 1400 L Street NW., 2nd floor, Washington, DC 20229–1225;
For APHIS Program-related questions, contact Ms. Cindy Walters, APHIS Liaison for Automated Commercial Environment, International Trade Data System, Management and Program Analyst, Quarantine Policy and Analysis Staff, PPQ, APHIS, 4700 River Road Unit 60, Riverdale, MD 20720; 301–851–2273;
The National Customs Automation Program (NCAP) was established in Subtitle B of Title VI—Customs Modernization, in the North American Free Trade Agreement Implementation Act (Pub. L. 103–182, 107 Stat. 2057, 2170, December 8, 1993; see 19 U.S.C. 1411). Through NCAP, the initial thrust of customs modernization was on trade compliance and the development of the Automated Commercial Environment (ACE), the planned successor to the Automated Commercial System (ACS). ACE is an automated and electronic system for commercial trade processing intended to streamline business processes, facilitate growth in trade, ensure cargo security, and foster participation in global commerce, while ensuring compliance with U.S. laws and regulations and reducing costs for U.S. Customs and Border Protection (CBP) and all of its communities of interest. The ability to meet these objectives depends on successfully modernizing CBP's business functions and the information technology that supports those functions.
CBP's modernization efforts are accomplished through phased releases of ACE component functionality designed to replace specific legacy ACS functions or test new automated
The Automated Broker Interface (ABI) allows participants to electronically file required import data with CBP and transfers that data into ACE.
This test is in furtherance of the International Trade Data System (ITDS), which is authorized by section 405 of the Security and Accountability For Every Port Act of 2006 (SAFE Port Act, Pub. L. 109–347). The purpose of ITDS, as defined by section 405 of the SAFE Port Act, is to eliminate redundant information filing requirements, efficiently regulate the flow of commerce, and effectively enforce laws and regulations relating to international trade, by establishing a single portal system, operated by CBP, for the collection and distribution of standard electronic import and export data required by all participating Federal agencies.
The Partner Government Agency (PGA) Message Set is the data needed to satisfy the PGA reporting requirements. For purposes of this test, the subject PGA is the Animal and Plant Health Inspection Service (APHIS). ACE enables the message set by acting as the “single window” for the submission of trade-related data required by the PGAs only once to CBP. This data must be submitted at any time prior to the arrival of the merchandise on the conveyance transporting the cargo to the United States as part of an ACE Entry/Cargo Release or Entry Summary. The data will be validated and made available to the relevant PGAs involved in import, export, and transportation-related decision making. The data will be used to fulfill merchandise entry and entry summary requirements. Also, by virtue of being electronic, the PGA Message Set will reduce the need for the submission and subsequent handling of paper documents. All PGA Message Set participants are required to use a software program that has completed ACE certification testing for the PGA Message Set.
Test participants may use the Document Imaging System (DIS) to electronically transmit the following forms and documents required by APHIS:
• APHIS 2006, U. S. Veterinary Biological Product Permit;
• APHIS VS 17–29, Declaration of Importation;
• APHIS VS 17–32, Application for Inspection and Dipping;
• Producers and Manufacturers Statements (sometimes called STATs); and
• Validation documentation, including all documents required to determine entry suitability, such as bills, packing lists, invoices, ingredients lists, and proofs of origin, among others.
For information regarding the use of DIS, and for updates to the list of PGA forms and documents which may be transmitted to ACE using DIS, please visit the DIS tab at:
Upon initiation of this test, CBP will accept electronically for ACE processing data filed by test participants at specified ports through the ABI. The data elements required for ACE processing are the same as those currently submitted in ACS or provided using paper APHIS forms. These data elements are set forth in the supplemental Customs and Trade Automated Interface Requirements (CATAIR) guidelines for APHIS. These technical specifications, including the CATAIR chapters can be found online at
CBP intends to expand ACE to cover all entry types and will publish a notice in the
Once CBP announces that ACE is required for all import entry types, parties in this test will be required to file some or all APHIS forms for all entry types at test operational ports using either ACE, ABI, or DIS, as designated on the CBP Web site. APHIS will still collect some paper documentation, such as phytosanitary certificates, and health certificates for live animals and animal products, due to Office of Management and Budget (OMB) requirements. Information about the ways in which data may be submitted is available on the CBP Web site at
Participants should consult the CBP Web site to determine which ports are operational for the test and the date that they become operational:
APHIS participation in this test will include selected forms and data required for admissibility determinations based on APHIS regulations. Under this test, APHIS required data will be transmitted electronically to ACE using the appropriate submission method. Information about this and other APHIS ITDS pilot projects can be found on the APHIS Web site at
This test will cover all modes of transport at the selected port(s), and all plants, animals, and plant and animal products when imported at one of the selected ports.
The import filing process for APHIS will require the submission of specifically designated information. The core submission will include DIS and paper submission for certain items due to OMB requirements. The designated PGA Message Set will be used to collect specified information that is required by APHIS. The PGA Message Set data will be submitted to ACE system through the use of the ABI at the time of the entry filing in addition to the CBP required import Entry or Entry Summary data. Examples of the kind of data that will be submitted as part of the PGA Message set are: Importer name, port of arrival, country of origin, quantity, commodity name, scientific name, and permit numbers.
We will accept applications starting October 2, 2015 and will continue to accept applications throughout the duration of the test. Any party seeking to participate in this test must provide to APHIS, in its request to participate, the name of its organization, its point of contact for the pilot, and contact information (phone number and email address). Submit your request to participate in this test by sending an email to
At this time, PGA Message Set data may be submitted only for entries filed at certain ports. A current listing of those ports may be found on the CBP Web site at
This test covers communication and coordination among the agencies and the filers of data through the PGA Message Set for the importation of plants, animals, and plant and animal products regulated by APHIS. Entry data submissions will be subject to validation edits and any applicable PGA business rules programmed into ACE. Once all of the PGAs have concluded their review of the shipment, issued a “May Proceed,” and have unset any remaining holds, CBP will send a single U.S. Government release message to the filer indicating that CBP has conditionally released the goods.
All data submitted and entered into ACE is subject to the Trade Secrets Act (18 U.S.C. 1905) and is considered confidential, except to the extent as otherwise provided by law. Participation in this test is not confidential and upon a written Freedom of Information Act request, the name(s) of an approved participant(s) will be disclosed by CBP in accordance with 5 U.S.C. 552.
Animal and Plant Health Inspection Service, USDA.
Revision to and extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request a revision to and extension of approval of an information collection associated with the regulations for the importation of baby corn and baby carrots from Zambia into the continental United States.
We will consider all comments that we receive on or before December 1, 2015.
You may submit comments by either of the following methods:
• Federal eRulemaking Portal: Go to
• Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS–2015–0049, Regulatory Analysis and Development, PPD, APHIS, Station 3A–03.8, 4700 River Road Unit 118, Riverdale, MD 20737–1238.
Supporting documents and any comments we receive on this docket may be viewed at
For information on the importation of baby corn and baby carrots from Zambia, contact Mr. Hesham Abuelnaga, Trade Director, PIM, PPQ, APHIS, 4700 River Road, Unit 140, Riverdale, MD 20737; (301) 851–2010. For copies of more detailed information on the information collection, contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851–2727.
In accordance with § 319.56–43, baby corn and baby carrots from Zambia are subject to certain conditions before entering the continental United States to prevent the introduction of plant pests into the United States. The regulations include requirements for the use of a phytosanitary certificate issued by the national plant protection organization (NPPO) of Zambia stating that the commodity was inspected and found free of certain pests.
The information collection activity of a phytosanitary certificate was approved by the Office of Management and Budget (OMB) under control number 0579–0284. However, when we compared the regulations with this collection activity, we found that inspection of production sites was omitted. Therefore, we have added inspection of production sites to this collection.
We are asking OMB to approve our use of these information collection activities, as described, for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic,
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
Extension of approval of an information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request an extension of approval of an information collection associated with regulations for the importation of shelled peas from Kenya.
We will consider all comments that we receive on or before December 1, 2015.
You may submit comments by either of the following methods:
• Federal eRulemaking Portal: Go to
• Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS–2015–0044, Regulatory Analysis and Development, PPD, APHIS, Station 3A–03.8, 4700 River Road Unit 118, Riverdale, MD 20737–1238.
Supporting documents and any comments we receive on this docket may be viewed at
For information on regulations for the importation of shelled peas from Kenya, contact Mr. Hesham Abuelnaga, Trade Director, PIM, PPQ, APHIS, 4700 River Road Unit 140, Riverdale, MD 20737; (301) 851–2010. For copies of more detailed information on the information collection, contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851–2727.
Under these regulations, shelled peas from Kenya are subject to certain conditions before entering the United States to prevent the introduction of plant pests into the United States. The regulations require that shipments of peas be accompanied by a phytosanitary certificate issued by the national plant protection organization (NPPO) of Kenya with an additional declaration stating that the peas have been shelled and washed in accordance with § 319.56–45 and have been inspected and found free of certain plant pests.
We are asking the Office of Management and Budget (OMB) to approve our use of these information collection activities for an additional 3 years.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Animal and Plant Health Inspection Service, USDA.
New information collection; comment request.
In accordance with the Paperwork Reduction Act of 1995, this notice announces the Animal and Plant Health Inspection Service's intention to request approval of a new information collection concerning packaging and labeling for products approved in accordance with the Virus-Serum-Toxin Act.
We will consider all comments that we receive on or before December 1, 2015.
You may submit comments by either of the following methods:
• Federal eRulemaking Portal: Go to
• Postal Mail/Commercial Delivery: Send your comment to Docket No. APHIS–2015–0066, Regulatory Analysis and Development, PPD, APHIS, Station 3A–03.8, 4700 River Road Unit 118, Riverdale, MD 20737–1238.
Supporting documents and any comments we receive on this docket may be viewed at
For information on packaging and labeling requirements for products approved under the Virus-Serum-Toxin Act, contact Dr. Donna L. Malloy, Section Leader, Operational Support, Center for Veterinary Biologics Policy, Evaluation, and Licensing, VS, APHIS, 4700 River Road Unit 148, Riverdale, MD 20737–1231; (301) 851–3426. For copies of more detailed information on the information collection, contact Ms. Kimberly Hardy, APHIS' Information Collection Coordinator, at (301) 851–2727.
The regulations in 9 CFR part 112, “Packaging and Labeling” (referred to below as the regulations), prescribe requirements for the packaging and labeling of veterinary biological products including requirements applicable to final container labels, carton labels, and enclosures. The main purpose of the regulations in part 112 is to regulate the packaging and labeling of veterinary biologics in a comprehensive manner, which includes ensuring that labeling provides adequate instructions for the proper use of the product, including vaccination schedules, warnings, and cautions. Complete labeling (either on the product or accompanying the product) must be reviewed and approved by APHIS in accordance with the regulations in part 112 prior to their use.
On January 13, 2011, we published in the
When we listed the above information collection activities in the proposed rule, we inadvertently did not obtain approval from the Office of Management and Budget (OMB). By this notice, we are asking OMB to approve our use of this information collection for 3 years and to assign an OMB control number.
The purpose of this notice is to solicit comments from the public (as well as affected agencies) concerning our information collection. These comments will help us:
(1) Evaluate whether the collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of our estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, through use, as appropriate, of automated, electronic, mechanical, and other collection technologies;
All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.
Farm Service Agency, USDA.
30-Day notice of submission of information collection approval from
As part of a Federal Government-wide effort to streamline the process to seek feedback from the public on service delivery, the Department of Agriculture (USDA), Farm Service Agency (FSA) has submitted a Generic Information Collection Request (Generic ICR): “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery ” to OMB for approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted by November 2, 2015.
Written comments may be submitted to the Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503;
To request additional information, please contact Ruth Brown (202) 720–8958 or Charlene Parker (202) 720–8681.
Feedback collected under this generic clearance will provide useful information, but it will not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential non-response bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.
The Agency received no comments in response to the 60-day notice published in the
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
Food and Nutrition Service (FNS), USDA.
Nominations open for the vacancies on the National Advisory Council on Maternal, Infant and Fetal Nutrition.
FNS is seeking nominations for 8 vacancies on the National Advisory Council on Maternal, Infant and Fetal Nutrition (Council). The Council is composed of 24 members. Members of the Council from outside USDA and the U.S. Department of Health and Human Services (HHS) are appointed for 3-year terms. State and local officials may serve only during their official tenure. Parent participants are appointed for 2-year terms. Members appointed from USDA and HHS serve at the pleasure of their respective Secretaries.
The Council studies the operation of the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), and related programs such as the Commodity Supplemental Food Program (CSFP). Categories of membership are specified by law. To assure a balance of differing views, Council members are drawn from Federal, State and local governments, industry, and organizations with a common interest in the management of WIC and CSFP, including parent participants in both programs.
The vacant positions include:
The individual responsible for administering the CSFP at the State level. Has operational knowledge about all aspects of CSFP management.
The official usually referred to as the health commissioner or director, who heads the State health department. This person is responsible for overseeing a wide range of public health services provided by the State health agency.
The official of the State health department responsible for directing public health nutrition services, which include the areas of maternal, infant and child nutrition, elderly nutrition, and nutrition for persons with developmental disabilities and chronic diseases.
Individual responsible for WIC Program Operations for an Indian Tribal Organization. WIC authorizing legislation allows Indian tribes, bands or groups that are recognized by the Department of Interior to operate as State agencies independent of geographic WIC State agencies.
The individual responsible for administering the CSFP at the local level. Has operational knowledge about all aspects of CSFP management.
A pregnant, postpartum or breastfeeding woman, or the parent/guardian of an infant and/or child participating in CSFP.
An individual from a company or organization involved in retail food sales.
An individual experienced in alcohol abuse education and prevention, especially in the areas of screening, counseling and referring for treatment of pregnant and postpartum women.
Section 17(k) of the Child Nutrition Act of 1966, as amended (42 U.S.C. 1786), mandates the Council and authorizes the Secretary of Agriculture to appoint the members. The White House Liaison Office is responsible for vetting every candidate who applies for membership to the Council. In order to be appointed by the Secretary of Agriculture to serve on a board, council or committee, each applicant must clear all stages of the vetting process. Vetting is a comprehensive personal and professional background investigation that specifically includes, but is not limited to, an analysis of each candidate's criminal history, bankruptcy filings, liens and judgments, affiliations and associations, lobbyist status, and prior involvement with USDA.
This process is used to ensure that the finest candidates are selected to represent the interests of the United States Department of Agriculture. Individuals and organizations who wish to nominate experts for this or any other USDA advisory committee should submit a letter to the Secretary listing these individuals' names and business address, phone, and email contact information. These individuals may be contacted now or in the future to determine their interest in serving as a committee member.
Candidates who wish to be considered for membership on the Council should submit an AD–755 application form and resume to the Secretary of Agriculture. Cover letters should be addressed to the Secretary of Agriculture. All nomination materials should be mailed in a single, complete package and postmarked by November 2, 2015 to: Thomas Vilsack, Secretary, U.S. Department of Agriculture, 1400 Independence Avenue SW., Washington, DC 20250 at the attention of Robin Young, DFO, USDA/FNS/SFPD. The application form and more information about advisory committees can be found at
FNS has special interest in assuring that women, minority groups, and the physically disabled are adequately represented on these advisory committees. We encourage and welcome nominations for qualified female, minority, or disabled candidates.
Forest Service, USDA.
Notice of final Idaho Roadless Area boundary modification.
The Forest Service, U.S. Department of Agriculture (USDA), is modifying the boundary of the West Mink Idaho Roadless Area on the Caribou-Targhee National Forest to relocate and expand the Gibson Jack Trailhead and also to incorporate the area bordering another trail that was previously excluded from the Roadless Area. These modifications are pursuant to 36 CFR 294.27(b).
These modifications are effective October 2, 2015.
Idaho Roadless Coordinator Anne Davy at (406) 329–3314. Additional information concerning this modification, including the corrected map, may be obtained on the Internet at
The following modification changes the boundary of the West Mink Idaho Roadless area. Approximately 11.4 acres are removed from the West Mink Roadless Area allow for the relocation and expansion of the Gibson Jack Trailhead. This modification also adds 18 acres to the Roadless Area by incorporating an area (or “cherry stem”) that was originally carved out of the Roadless Area. This 18 acre area follows a closed Forest Service road that has since been converted to a motorized trail. These boundary modifications result in a net increase of 6.6 acres.
The Idaho Roadless Rule authorizes modifications to the maps of lands identified in 36 CFR§ 294.22(c), including but not limited to, additions, removals, or modifications of the designations and management classifications listed in 36 CFR§ 294.29 based on changed circumstances or public need. The Chief of the Forest Service may issue modifications after a 45-day public notice and opportunity to comment.
The Forest Service published notice of the proposed boundary modification in the
The Forest Service received one comment on the proposed boundary modification. The Idaho Department of Parks and Recreation supported the proposed modification because it would result in a net gain to the roadless area and would improve parking at the Gibson Jack trailhead.
Forest Service, USDA.
Notice of intent to prepare a joint Environmental Impact Report/Environmental Impact Statement for the North-South Project.
Pursuant to section 102(2)(C) of the National Environmental Policy Act of 1969 (NEPA), as amended, notice is hereby given that the San Bernardino National Forest (Forest Service), together with the California Public Utilities Commission (CPUC), intend to prepare a joint Environmental Impact Report and Environmental Impact Statement (EIR/EIS) for the Southern California Gas Company (SoCal Gas) and San Diego Gas and Electric (SDG&E) proposed North-South Project.
All scoping comments must be received by November 23, 2015. The draft environmental impact statement is expected June 2016 and the final environmental impact statement is expected December 2016.
You may submit comments to Eric Chiang, California Public Utilities Commission, and Jody Noiron, Forest Supervisor, San Bernardino National by any of the following methods:
Information can be requested by leaving a voice message at (844) 277–2475, or by checking the project Web site at
Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 between 8 a.m. and 8 p.m., Eastern Time, Monday through Friday.
The primary components of the Proposed Project include the construction of a 36-inch-diameter natural gas transmission pipeline and the rebuilding of the Adelanto Compressor Station. The pipeline would be primarily constructed within existing public and private rights-of-way. The Adelanto to Moreno pipeline would be approximately 65 miles in length and would begin at the Adelanto Compressor Station in the high desert city of Adelanto and would proceed in a southerly direction through the Cajon Pass and the San Bernardino National Forest, terminating at the Moreno Pressure Limiting Station in the City of Moreno Valley. Approximately eight miles of the proposed pipeline and associated temporary construction areas cross lands subject to Forest Service jurisdiction. The balance of the alignment crosses through non-federal land in San Bernardino and Riverside Counties along public roads.
The Adelanto Compressor Station would be rebuilt with approximately 30,000 horsepower (HP) of compression in order to accommodate the design throughput. Additional Proposed Project components include: (i) Installation of additional pressure limiting equipment at Moreno Pressure Limiting Station and Whitewater Pressure Limiting Station, (ii) installation of pressure limiting equipment at the proposed Shaver Summit Pressure Limiting Station near the City of Indio and at the Desert Center Compressor Station near the community of Desert Center, and (iii) installation of 16 main line block valves.
The Forest Service must respond to SoCalGas and SDG&E's application for a new natural gas transmission pipeline in the Cajon Pass designated utility corridor in a manner that is consistent with the Forest Service special use regulations (36 CFR part 251 Subpart B), the Mineral Leasing Act of 1920, as amended, and the Land Management Plan (LMP). The Forest Service purpose and need will guide the development of alternatives considered on National Forest System lands.
The Cajon Pass corridor has a long history of serving as a major utility and transportation corridor into southern California. It was designated as a utility corridor when the LMP was revised in 2006, and was included as a “Section 368” corridor by the LMP amendment signed by the Natural Resources and Environment Under Secretary of Agriculture in 2009. Designated corridors are the primary agency alternative for siting energy transmission projects.
Permits issued by the Forest Service are required by law to be consistent with the LMP. The LMP identifies suitable uses within various land use zones, describes desired conditions based on the LMP goals and objectives, and sets resource management standards. The joint EIR/EIS will evaluate the consistency of the proposed project and any alternatives with the LMP. Based on an initial review of the proposed project, project specific LMP amendments may be required to resolve potential conflicts with the plan Land Use Zones and the plan standards associated with riparian areas, scenery management, and the Pacific Crest Trail.
The Forest Service proposed action would authorize the construction, operation, and maintenance of a 36-inch-diameter natural gas transmission line, associated valve stations, and access roads on National Forest System lands within the San Bernardino National Forest. Temporary work areas or areas needed for pre-construction surveys, including geological explorations, would also be authorized. The pipeline Right-of-Way would be authorized by a 50 year permit or easement under the authority of the Mineral Leasing Act.
The EIR/EIS will describe and evaluate the comparative merits of a reasonable range of alternatives to the proposed action. Alternatives to be analyzed in the EIR/EIS will be developed during the environmental review process and will consider input received during scoping, and will include the no action alternative as required by law.
The Responsible Official for the Forest Service decision is Randy Moore, Regional Forester, Pacific Southwest Region. Jody Noiron, Forest Supervisor, San Bernardino National Forest, will be the Forest Service official responsible for conducting the environmental review.
The CPUC has independent jurisdiction over the entire project, and will determine if SoCalGas' and SDG&E's application for authority to recover North-South Project revenue requirements in customer rates, and for approval of related cost allocation and rate design proposals, is in the public interest, and if so, under what conditions the authority would be granted. If the CPUC approves the proposed project, the Forest Service will decide whether or not to authorize the portions of the project on National Forest System lands, and if so, under what conditions.
The Forest Service and CPUC have identified potential issues and impacts to the existing environment that require a detailed analysis in the EIR/EIS. Those
SoCalGas and SDG&E would be required to obtain any applicable discretionary and ministerial permits from federal, state, and local agencies prior to construction of the project. Those permits could include, but are not limited to, permits or certificates required by the Clean Water Act and administered by the United States Army Corps of Engineers and the State and Regional Water Resource Control Boards, permits related to the Clean Air Act administered by the State or Regional Air Quality Control Boards, and wildlife and habitat related permits administered by the United States Fish and Wildlife Service and California Department of Fish and Wildlife.
The Forest Service invites federal, state, or local agencies and tribes to join as cooperating agencies. Requests for cooperating agency status may be submitted to Forest Supervisor Jody Noiron, San Bernardino National Forest, 602 S. Tippecanoe Ave., San Bernardino, CA 92408.
The CPUC and Forest Service are initiating the joint CEQA/NEPA scoping process with this Notice of Intent and associated Joint Notice of Preparation/Scoping Notice. The comments received during scoping will help guide the development of the EIR/EIS. Three public meetings will be held during the scoping process to answer questions about the proposed project and to accept comments on the scope of the analysis. Meetings will be held at the following dates and locations:
1. October 27, 2015 from 6 to 8:30 p.m. at San Gorgonio High School, 2299 Pacific Street, San Bernardino, CA
2. October 28, 2015 from 6 to 8:30 p.m. at the Courtyard Marriott, 9619 Mariposa Road, Hesperia, CA
3. October 29, 2015 from 6 to 8:30 p.m. at the Moreno Valley Conference and Recreation Center, 14075 Frederick Street, Moreno Valley, CA
It is important that reviewers provide their comments at such times and in such a way that they are useful to the CPUC and Forest Service preparation of the EIR/EIS. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
Comments received during scoping, including names and addresses of those who comment, will be part of the public record for this proposed project. Comments submitted anonymously will be accepted and considered; however, anonymous comments will not provide the Forest Service with the ability to provide the respondent with subsequent environmental documents and will not provide the respondent standing to participate in subsequent administrative or judicial review of the Forest Service decision. This project will follow the predecisional administrative review process pursuant to 36 CFR 218, Subparts A and B.
The Department of Agriculture has submitted the following information collection requirement(s) to Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104–13. Comments regarding (a) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, 725 17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA) that a planning meeting of the Connecticut Advisory Committee to the Commission will convene at 1:00 p.m. (EDT) on Thursday, October 28, 2015, by teleconference. The purpose of the planning meeting is for the Committee to discuss civil rights topics and potential projects and vote on an issue for the Committee to examine in a 2016 briefing meeting.
Interested members of the public may listen to the discussion by calling the following toll-free conference call number 1–888–587–0615 and conference call code: 682009#. Please be advised that before placing them into the conference call, the conference call operator will ask callers to provide their names, their organizational affiliations (if any), and email addresses (so that callers may be notified of future meetings). Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number.
Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service at 1–800–977–8339 and providing the operator with the above conference call number and conference call code.
Members of the public are invited to submit written comments; the comments must be received in the regional office by Monday, November 30, 2015. Written comments may be mailed to the Eastern Regional Office, U.S. Commission on Civil Rights, 1331 Pennsylvania Avenue, Suite 1150, Washington, DC 20425, faxed to (202) 376–7548, or emailed to Evelyn Bohor at
The activities of this advisory committee, including records and documents discussed during the meeting, will be available for public viewing, as they become available at:
Barbara Delaviez, Deputy Director, Eastern Regional Office and Designated Federal
Alex A. Knopp, Chair
CT State Advisory Committee
Thursday, October 28, 2015 at 1:00 p.m. (EDT).
The meeting will be held via teleconference:
Conference Call-in Number: 1–888–587–0615; Conference Call ID code: 682009#.
TDD: Dial Federal Relay Service 1–800–977–8339 and give the operator the above conference all-in number and conference call code.
Ivy L. Davis at
U.S. Commission on Civil Rights.
Notice of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Kentucky (State) Advisory Committee will hold a meeting on Thursday, October 22, 2015, for the purpose of welcoming new members to the committee and discussing potential projects.
Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 1–888–481–2877, conference ID: 900515. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1–800–977–8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also invited to make statements during the scheduled open period of the agenda. Alternatively, the public can submit written comments; the comments must be received in the regional office by October 16, 2015. Written comments may be mailed to the Southern Regional Office, U.S. Commission on Civil Rights, 61 Forsyth Street, Suite 16T126, Atlanta, GA 30303. They may also be faxed to the Commission at (404) 562–7005, or emailed to Regional Director, Jeffrey Hinton at
Records generated from this meeting may be inspected and reproduced at the Southern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via
The meeting will be held on Thursday, October 22, 2015, at 1:00 p.m. EST.
The meeting will be by teleconference. Toll-free call-in number: 1–888–481–2877, conference ID: 900515.
U.S. Commission on Civil Rights.
Notice of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the North Carolina (State) Advisory Committee will hold a meeting on Wednesday, October 21, 2015, for the purpose of discussing potential project topics.
Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888–397–5352, conference ID: 793192. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1–800–977–8339 and providing the Service with the conference call number and conference ID number.
Members of the public are also invited to make statements during the scheduled open comment period of the agenda. Alternatively, the public can submit written comments; the comments must be received in the regional office by October 16, 2015. Written comments may be mailed to the Southern Regional Office, U.S. Commission on Civil Rights, 61 Forsyth Street, Suite 16T126, Atlanta, GA 30303. They may also be faxed to the Commission at (404) 562–7005, or emailed to Regional Director, Jeffrey Hinton at
Records generated from this meeting may be inspected and reproduced at the Southern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via
The meeting will be held on Wednesday, October 21, 2015, at 1:00 p.m. EST.
The meeting will be by teleconference. Toll-free call-in number: 888–397–5352, conference ID: 793192.
Matty Lazo- Chadderton, Chair
Matty Lazo- Chadderton, Chair
Advisory Committee
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Eizabeth Eastwood, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–3874.
On May 1, 2015, the Department published in the
In July 2015, the petitioners, Taihe, and RZBC Group withdrew their administrative review requests.
Pursuant to 19 CFR 351.213(d)(1), the Department will rescind an administrative review, in whole or in part, if a party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review. The petitioners, Taihe, and RZBC Group each withdrew their requests for review by the 90-day deadline. Therefore, we are rescinding the administrative review of the countervailing duty order on citric acid from the PRC covering the period January 1, 2014, through December 31, 2014.
The Department will instruct U.S. Customs and Border Protection (CBP) to assess countervailing duties on all appropriate entries. Countervailing duties shall be assessed at rates equal to the cash deposit of estimated countervailing duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). The Department intends to issue appropriate assessment instructions directly to CBP 15 days after the date of publication of this notice in the
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
This notice is published in accordance with section 751 of the Act and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce.
On April 6, 2015, the Department of Commerce (Department) published its preliminary results of the administrative review of the antidumping duty order on circular welded carbon steel pipes and tubes from Thailand covering the period of review (POR) March 1, 2013, through February 28, 2014.
Nicholas Czajkowski at (202) 482–1395; AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.
On August 12, 2015, we invited parties to comment on the
The Department conducted this administrative review in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act).
The products covered by the antidumping order are certain circular welded carbon steel pipes and tubes from Thailand. The subject merchandise has an outside diameter of 0.375 inches or more, but not exceeding 16 inches. These products, which are commonly referred to in the industry as “standard pipe” or “structural tubing” are hereinafter designated as “pipes and tubes.” The merchandise is classifiable under the Harmonized Tariff Schedule of the United States (HTSUS) item numbers 7306.30.1000, 7306.30.5025, 7306.30.5032, 7306.30.5040, 7306.30.5055, 7306.30.5085 and 7306.30.5090. Although the HTSUS subheadings are provided for convenience and purposes of U.S. Customs and Border Protection (CBP), the written description of the merchandise subject to the order is dispositive.
We have analyzed the comments submitted by Saha Thai. In its case brief, Saha Thai made several arguments objecting to the Department's differential pricing analysis. The Department has used the standard A-to-A method to calculate Saha Thai's weighted-average dumping margin (unchanged from the
We made changes to Pacific Pipe's calculation for the final results. Specifically, we (1) used updated sales and cost of production databases, (2) adjusted the home market sales cost of production databases based on minor corrections at verification, (3) revised Pacific Pipe's reported per-unit costs to correspond to the reported total cost of manufacturing of the merchandise under consideration, and (4) revised Pacific Pipe's general and administrative expense rate.
The final weighted-average dumping margins for the period March 1, 2013,
In accordance with 19 CFR 351.106(c)(2) and the
The Department clarified its “automatic assessment” regulation on May 6, 2003.
We intend to issue instructions to CBP 15 days after publication of the final results of this review.
The following cash deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of circular welded carbon steel pipes and tubes from Thailand entered, or withdrawn from warehouse, for consumption on or after the date of publication as provided by section 751(a)(2) of the Act: (1) The cash deposit rate for Saha Thai and Pacific Pipe will be 0.00 percent, the weighted-average dumping margin established in the final results of this administrative review; (2) for previously reviewed or investigated companies not listed above, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the less than fair value (LTFV) investigation, but the manufacturer is, then the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the manufacturer of the merchandise; and (4) if neither the exporter nor the manufacturer is a firm covered in this or any previous review or the LTFV investigation, then the cash deposit rate will be the “all-others” rate of 15.67 percent established in the LTFV investigation.
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
The Department is issuing and publishing these final results of administrative review in accordance with sections 751(a)(1) and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of these sunset reviews, the Department of Commerce (the Department) finds that revocation of the antidumping duty orders on stainless steel wire rod (SSWR) from Italy, Japan, the Republic of Korea (Korea), Spain, and Taiwan would be likely to lead to continuation or recurrence of dumping at the levels indicated in the “Final Results of Sunset Reviews” section of this notice.
Stephen Bailey or Elizabeth Eastwood, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482–0193 or (202) 482–3874, respectively.
On May 1, 2015, the Department published the notice of initiation of the third sunset reviews of the antidumping duty orders on SSWR from Italy, Japan, Korea, Spain, and Taiwan, pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act).
The merchandise subject to these orders is SSWR. The products subject to these orders are currently classifiable under subheadings 7221.00.0005, 7221.00.0015, 7221.00.0030, 7221.00.0045, and 7221.00.0075 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of these orders is dispositive.
All issues raised in these reviews, including the likelihood of continuation or recurrence of dumping in the event of revocation and the magnitude of the margins likely to prevail if the orders were revoked, are addressed in the accompanying Issues and Decision Memorandum. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Pursuant to sections 751(c)(1) and 752(c)(1),(2) and (3) of the Act, we determine that revocation of the antidumping duty orders on SSWR from Italy, Japan, Korea, Spain, and Taiwan would be likely to lead to continuation or recurrence of dumping up to the following weighted-average margin percentages:
This notice serves as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing these results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act and 19 CFR 351.218.
I. Summary
II. Background
III. Scope of the Orders
IV. History of the Orders
V. Legal Framework
VI. Discussion of the Issues
1. Likelihood of Continuation or Recurrence of Dumping
2. Magnitude of the Margins Likely to Prevail
VII. Final Results of Sunset Reviews
VIII. Recommendation
Enforcement and Compliance, International Trade Administration, Department of Commerce.
As a result of this sunset review, the Department of Commerce (the Department) finds that revocation of the antidumping duty order on certain tissue paper products (tissue paper) from the People's Republic of China (PRC) would be likely to lead to continuation or recurrence of dumping at the level indicated in the “Final Results of Sunset Review” section of this notice.
Terre Keaton Stefanova or Brian Smith, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street & Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482–1280 or (202) 482–1766, respectively.
On March 30, 2005, the Department published the antidumping duty order on tissue paper from the PRC.
The merchandise subject to the order is certain tissue paper products. The merchandise subject to the order is classifiable under subheadings: 4802.30, 4802.54, 4802.61, 4802.62, 4802.69, 4804.31.1000, 4804.31.2000, 4804.31.4020, 4804.31.4040, 4804.31.6000, 4804.39, 4805.91.1090, 4805.91.5000, 4805.91.7000, 4806.40, 4808.30, 4808.90, 4811.90, 4823.90, 4802.50.00, 4802.90.00, 4805.91.90, 9505.90.40.2003.10.0027, 2003.10.0031, 2003.10.0037, 2003.10.0043 and 2003.10.0047 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this order is dispositive.
All issues raised in this review, including the likelihood of continuation or recurrence of dumping in the event of revocation and the magnitude of the margins likely to prevail if the order were revoked, are addressed in the accompanying Issues and Decision Memorandum, which is hereby adopted by this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Pursuant to sections 751(c)(1) and 752(c)(1) and (3) of the Act, we determine that revocation of the antidumping duty order on tissue paper from the PRC would be likely to lead to continuation or recurrence of dumping, and that the magnitude of the margins of dumping likely to prevail would be at weighted-average margins up to 112.64 percent.
This notice serves as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.
We are issuing and publishing these results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act, 19 CFR 351.218 and 19 CFR 351.221(c)(5)(ii).
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
Needs and Uses: The Panel is established under a contract to support NIST in its role under the NIST authorities set forth in 15 U.S.C. 272(b)(10), (c)(12) and (c)(15) and to fulfill NIST's responsibilities described in the President's Climate Action Plan of 2013. The Panel will identify, describe, and prioritize guidance for comprehensive community resilience planning across the United States. The Panel membership form asks the applicant to provide his/her name, title, address, telephone, email address, organization, education, relevant work experience, standards developing experience, professional associations, stakeholder and standing committee areas of interest, as well as other relevant experience and areas of interest. The information provided by the applicants will be used to determine the background and skills of the Panel applicants. This information will also allow the Panel Administrator to organize the Panel and select leaders who will use their expertise and experience in a consensus process.
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; receipt of application.
Notice is hereby given that Ann M. Zoidis, Cetos Research Organization, 11 Des Isle Avenue, Bar Harbor, ME 04609, has applied in due form for a permit to conduct research on humpback whales (
Written, telefaxed, or email comments must be received on or before November 2, 2015.
The application and related documents are available for review by selecting “Records Open for Public Comment” from the “Features” box on the Applications and Permits for Protected Species (APPS) home page,
These documents are also available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427–8401; fax (301) 713–0376.
Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713–0376, or by email to
Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.
Rosa L. González or Carrie Hubard, (301) 427–8401.
The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361
The applicant proposes to address a variety of questions regarding population size, habitat use, and behavior of baleen and odontocete species using passive acoustic monitoring, suction cup tagging, biopsy sampling, underwater photography/videography, and photo ID during vessel surveys in Hawaii and the Mariana Islands (Guam and the Commonwealth of the Northern Mariana Islands). The research would target humpback whales as well as 25 other species of whales and dolphins. Species may undergo all methodologies (except right whales, which will not be tagged). Incidental harassment for all species is also requested. Research would take place throughout the year. The permit is requested for 5 years.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
Concurrent with the publication of this notice in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 45 in-person workshop for Gulf of Mexico Vermilion Snapper.
The SEDAR 45 assessment of the Gulf of Mexico Vermilion Snapper will consist of one in-person workshop and a series of webinars. See
The SEDAR 45 in-person workshop will be held from 1 p.m. on November 17, 2015 until 12 p.m. on November 19, 2015.
Julie A. Neer, SEDAR Coordinator; (843) 571–4366; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a multi-step process including: (1) Data/Assessment Workshop, and (2) a series of webinars. The product of the Data/Assessment Workshop is a report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses, and describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, HMS Management Division, and Southeast Fisheries Science Center. Participants include data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and NGO's; International experts; and staff of Councils, Commissions, and state and federal agencies.
The items of discussion in the Assessment Process webinars are as follows:
1. An assessment data set and associated documentation will be developed during the workshop.
2. Participants will evaluate proposed data and select appropriate sources for providing information on life history characteristics, catch statistics, discard estimates, length and age composition, and fishery dependent and fishery independent measures of stock abundance.
3. Using datasets selected, participants will develop population models to evaluate stock status, estimate population benchmarks and management criteria, and project future conditions.
4. Participants will recommend the most appropriate methods and configurations for determining stock status and estimating population parameters.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Caribbean Fishery Management Council's Outreach and Education Advisory Panel (OEAP) will meet.
The meeting will be held on October 30, 2015, from 10 a.m. to 4 p.m.
The meeting will be held at CFMC Office, 270 Munoz 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 OEAP meeting will convene on October 30, 2015, from 10 a.m. until 4 p.m. 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.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of SEDAR 46 Data/Assessment workshop for Caribbean Data-limited Species.
The SEDAR 46 assessment of Caribbean Data-limited Species will consist of one in-person workshop and a series of webinars. See
The SEDAR 46 Workshop will be held from 1 p.m. on November 2, 2015 until 12 p.m. on November 6, 2015.
Julie A. Neer, SEDAR Coordinator; (843) 571–4366l; email:
The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. SEDAR is a multi-step process including: (1) Data/Assessment Workshop, and (2) a series of webinars. The product of the Data/Assessment Workshop is a report which compiles and evaluates potential
The items of discussion in the Assessment Process webinars are as follows:
1. An assessment data set and associated documentation will be developed during the Workshop.
2. Participants will evaluate proposed data and select species for further analysis.
3. Using datasets selected, participants will develop population models using data-limited methodologies to evaluate stock status, estimate population benchmarks and management criteria, and project future conditions.
4. Participants will recommend the most appropriate methods and configurations for determining stock status and estimating population parameters.
Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.
This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to the Council office (see
The times and sequence specified in this agenda are subject to change.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of permit.
Notice is hereby given that a permit has been issued to Terrie Williams, Ph.D., University of California at Santa Cruz, Long Marine Lab, Center for Ocean Health, 100 Shaffer Road, Santa Cruz, CA 95060, to conduct research on captive marine mammals.
The permit and related documents are available for review upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427–8401; fax (301) 713–0376.
Jennifer Skidmore or Amy Sloan, (301) 427–8401.
On July 28, 2015, notice was published in the
The permit authorizes research activities to compare the energetic and cardiovascular responses and diving physiology of odontocetes and pinnipeds to determine key physiological factors including captive bottlenose dolphins (
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
As required by the ESA, issuance of this permit was based on a finding that such permit: (1) Was applied for in good faith; (2) will not operate to the disadvantage of such endangered species; and (3) is consistent with the purposes and policies set forth in section 2 of the ESA.
Office of National Marine Sanctuaries (ONMS), National Ocean Service (NOS), National Oceanic and Atmospheric Administration (NOAA), Department of Commerce (DOC).
Notice of open meeting.
Notice is hereby given of a meeting of the Sanctuary System Business Advisory Council (Council). The meeting is open to the public, and participants may provide comments at the appropriate time during the meeting.
The meeting will be held Monday, October 19, 2015, from 9:00 a.m. to 5:00 p.m. EST. An opportunity for public comment will be provided at 4:35 p.m. EDT. These times and the agenda topics described below are subject to change.
The meeting will be held in the New England Aquarium's Harborside Learning Lab. The lab is located on the ground floor of the Boston Harbor Garage, which is located
Rebecca Holyoke, Office of National Marine Sanctuaries, 1305 East West Highway, Silver Spring, Maryland 20910. (Phone: 301–713–7264, Fax: 301–713–0404; email:
ONMS serves as the trustee for 14 marine protected areas encompassing more than 170,000 square miles of ocean and Great Lakes waters from the Hawaiian Islands to the Florida Keys, and from Lake Huron to American Samoa. National marine sanctuaries protect our Nation's most vital coastal and marine natural and cultural resources, and through active research, management, and public engagement, sustain healthy environments that are the foundation for thriving communities and stable economies. One of the many ways ONMS ensures public participation in the designation and management of national marine sanctuaries is through the formation of advisory councils. The Sanctuary System Business Advisory Council (Council) has been formed to provide advice and recommendations to the Director regarding the relationship of the ONMS with the business community. Additional information on the Council can be found at
16 U.S.C. Sections 1431,
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The South Atlantic Fishery Management Council will hold a meeting of its Habitat Protection and Ecosystem-Based Management (Habitat) Advisory Panel (AP) in N. Charleston, SC. The meeting is open to the public.
The meeting will be held from 9 a.m. until 4:30 p.m. on Tuesday, November 17, 2015, and from 9 a.m. until 4:30 p.m. Wednesday, November 18, 2015.
Kim Iverson, Public Information Officer, South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, N. Charleston, SC 29405; phone: (843) 571–4366 or toll free: (866) SAFMC–10; fax: (843) 769–4520; email:
Items to be addressed or sessions to be conducted during the Habitat AP meeting include but not limited to: The review and completion of a redrafted Council Essential Fish Habitat (EFH) Policy Statement on Energy Exploration, Development and Transportation; a presentation on the Florida Artificial Reef Program and discussion on the developing Artificial Reef Policy Statement; a roundtable discussion on issues associated with South Atlantic Climate Variability and Fisheries and South Atlantic Food Webs and Connectivity for possible future policy statement development; and a Panel member working session highlighting regional research program activities and facilitating the update of Volume V of Fishery Ecosystem Plan (FEP) II, Regional Programs and Data Needs and associated appendices presenting Council, State, Commission and partner research, monitoring and data needs. Other status reports will focus on regional ecosystem modelling, threats to EFH, and EFH updates associated with FEP II development.
The meeting is physically accessible to people with disabilities. Requests for auxiliary aids should be directed to the council office (see
The times and sequence specified in this agenda are subject to change.
The next meeting of the U.S. Commission of Fine Arts is scheduled for 15 October 2015, at 9:00 a.m. in the Commission offices at the National Building Museum, Suite 312, Judiciary Square, 401 F Street NW., Washington DC, 20001–2728. Items of discussion may include buildings, parks and memorials.
Draft agendas and additional information regarding the Commission are available on our Web site:
Committee for Purchase from People Who are Blind or Severely Disabled.
Deletions from the Procurement List.
This action deletes products from the Procurement List that was previously furnished by the nonprofit agency employing persons who are blind or have other severe disabilities.
Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia, 22202–4149.
Barry S. Lineback, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
On 9/4/2015 (80 FR 53501–53502), the Committee for Purchase from People Who are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.
After consideration of the relevant matter presented, the Committee has determined that the products listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501–8506 and 41 CFR 51–2.4.
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 additional reporting, recordkeeping or other compliance requirements for small entities.
2. The action may result in authorizing small entities to furnish the products 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 products deleted from the Procurement List.
Accordingly, the following products are deleted from the Procurement List:
Committee for Purchase from People Who are Blind or Severely Disabled.
Proposed Additions to and Deletion from the Procurement List.
The Committee is proposing to add services to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities, and deletes a service previously furnished by such agency.
Committee for Purchase from People Who are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia 22202–4149.
For further information or to submit comments contact Barry S. Lineback, Telephone: (703) 603–7740, Fax: (703) 603–0655, or email
This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51–2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.
If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to provide the services listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.
The following services are proposed for addition to the Procurement List for production by the nonprofit agencies listed:
The following service is proposed for deletion from the Procurement List:
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of Availability.
Notice is hereby given that the U.S. Army Corps of Engineers, Mobile District (USACE), has released the Draft Environmental Impact Statement (DEIS) and will conduct open house style meetings and accept comments on the Draft DEIS for the update of the Apalachicola-Chattahoochee-Flint Basin (ACF) Water Control Master Manual (Master Manual).
Comments on the DEIS are due not later than December 1, 2015.
Submit comments as indicated in the
Mr. Lewis Sumner at telephone (251) 694–3857.
The Master Manual includes appendices prepared for individual projects in the ACF Basin and is the guide used by USACE to operate a system of five federal reservoir projects in the basin—Buford Dam and Lake Lanier, West Point Dam and Lake, Walter F. George Lock and Dam and Lake, George W. Andrews Lock and Dam and Lake, and Jim Woodruff Lock and Dam and Lake Seminole.
The purpose and need for the federal action is to determine how federal projects in the ACF Basin should be operated for their authorized purposes, in light of current conditions and applicable law, and to implement those operations through updated water control plans and manuals. The proposed action will result in an updated Master Manual and individual project water control manuals (WCMs) that comply with existing USACE regulations and reflect operations under existing congressional authorizations, taking into account changes in basin hydrology and demands from years of growth and development, new/rehabilitated structural features, legal developments, and environmental issues. The action includes updates to account for a June 28, 2011, decision of the 11th Circuit Court of Appeals.
On May 16, 2000, the Governor of the State of Georgia submitted a formal request to the Assistant Secretary of the Army (Civil Works) to adjust the operation of Lake Lanier, and to enter into agreements with the State or water supply providers to accommodate increases in water supply withdrawals from Lake Lanier and downstream at Atlanta over the next 30 years, culminating in total gross withdrawals of 705 million gallons per day (mgd)—297 mgd from Lake Lanier and 408 mgd downstream by the year 2030. The Assistant Secretary of the Army (Civil Works) in 2002 denied Georgia's request. The 2011 decision of the 11th Circuit Court of Appeals ordered USACE to reconsider whether it has the legal authority to operate the Buford project to accommodate Georgia's request. USACE provided a legal opinion concluding that it has sufficient authority under applicable law to accommodate that request, but noted that any decision to take action on Georgia's request would require a separate analysis. On January 11, 2013, the Governor of the State of Georgia provided updated demographic and water demand data to confirm the continued need for 705 mgd to meet Georgia's water needs from Lake Lanier and the Chattahoochee River to approximately the year 2040 rather than 2030 as specified in the 2000 request.
USACE's objectives for the Master Manual are to develop a Water Control Plan that meets the existing water resources needs of the basin, fulfills its responsibilities in operating for the authorized project purposes, and complies with all pertinent laws. The DEIS presents the results of USACE's analysis of the environmental effects of the Proposed Action Alternative (PAA) that the USACE believes accomplishes these objectives.
USACE evaluated an array of potential water management alternatives and optional water supply amounts during the Master Manual update process, resulting in the selection of the PAA. Additional information on the components of the PAA can be found at
The DEIS and appendices are available to the public for review in the following formats:
• Online as PDF documents at
• As a CD when requested in writing to: Commander, U.S. Army Corps of Engineers, Mobile District, Attn: PD–EI (ACF–EIS), P.O. Box 2288, Mobile, AL 36628.
• A limited number of CD copies will also be available at the DEIS public meetings.
The public comment period will commence with the publication of this notice and will end 60 days after its publication. USACE recognizes that the decisions made concerning revisions to the water control operations at USACE projects within the ACF Basin will have wide-ranging effects and encourages the public to submit comments on the content of the DEIS. All persons and organizations that have a potential interest in the proposed action, including minority, low-income, disadvantaged, and Native American groups, are urged to participate in this NEPA environmental analysis process by reviewing the DEIS and submitting comments for consideration.
Comments may be submitted via the following methods:
• Onsite at open houses through comment forms;
• Verbally through the court reporter at public meetings;
• By emailing
• By letter addressed to: Commander, U.S. Army Corps of Engineers, Mobile District, Attn: PD–EI (ACF–DEIS), P.O. Box 2288, Mobile, AL 36628.
Further information regarding the update of the Master Manual, including all available documents, background and historical information, and updates is available online at the Web site given above.
Open houses are scheduled to be held at the following locations and times:
• Monday, October 26, 2015, 4:00 p.m.–7:00 p.m. Eastern time, Gainesville Civic Center, 830 Green Street NE., Gainesville, GA 30501.
• Tuesday, October 27, 2015, 4:00 p.m.–7:00 p.m. Eastern time, West Point Depot, 500 3rd Avenue, West Point, GA. 31833.
• Wednesday, October 28, 2015, 4:00 p.m.–7:00 p.m. Central time, James S. Clark Center, 333 E. Broad Street, Eufaula AL, 36027.
• Thursday, October 29, 2015, 4:00 p.m.–7:00 p.m. Eastern time, Bainbridge State College, Charles H. Kirbo Regional Center, 2500 E. Shotwell Street (US Highway 84), Bainbridge, GA 39819.
• Monday, November 9, 2015, 4:00 p.m.–7:00 p.m., Apalachicola National Estuarine Research Reserve, 108 Island Drive, Eastpoint, FL 32328.
All comments will be catalogued and reviewed after the 60-day public comment period. The final EIS (FEIS) is scheduled to be completed and filed with the USEPA in 2016. The Record of Decision, if appropriate, will be signed following the FEIS and the Master Manual is scheduled to be approved in March 2017.
Southeastern Power Administration, DOE.
Notice of interim approval.
The Deputy Secretary of Energy confirmed and approved, on an interim basis, Rate Schedules CBR–1–I, CSI–1–I, CEK–1–I, CM–1–I, CC–1–J, CK–1–I, CTV–1–I, CTVI–1–B, and Replacement-3. The rates were approved on an interim basis through September 30, 2020. The new rates take effect on October 1, 2015, and are subject to confirmation and approval on a final basis by the Federal Energy Regulatory Commission (Commission).
Approval of the rate schedules on an interim basis is effective October 1, 2015, through September 30, 2020.
Virgil G. Hobbs, III, Assistant Administrator, Finance & Marketing, Southeastern Power Administration, Department of Energy, 1166 Athens Tech Road, Elberton, Georgia 30635–6711, (706) 213–3838.
On December 22, 2011, the Commission confirmed and approved on a final basis Wholesale Power Rate Schedules CBR–1–H, CSI–1–H, CEK–1–H, CM–1–H, CC–1–I, CK–1–H, CTV–1–H, CTVI–1–A, and Replacement-3 for the period from October 1, 2011, to September 30, 2013 (137 FERC ¶ 62,249). On July 10, 2013, the Deputy Secretary approved an extension of the rate schedules through September 30, 2015 (78 FR 42764).
The Southeastern Power Administration's power marketing policy (58 FR 41762, Aug. 5, 1993) provides peaking capacity, along with 1500 kilowatt-hours of energy with each kilowatt of capacity, to customers outside the Tennessee Valley Authority (TVA) transmission system. Due to restrictions on the operations of the Center Hill Project imposed by the U.S. Army Corps of Engineers (Corps) as a precaution to prevent failure of the dam, Southeastern has not been able to provide full peaking capacity to these customers. A revised interim operating plan for the Cumberland System provides these customers with energy that includes a proportional percentage of normal marketed capacity.
A current repayment study using present rates shows that revenues will not be adequate to meet repayment criteria. A revised study with a revenue requirement increase of $3,900,000, or about seven percent, shows that the rates established in this notice will be adequate to meet repayment criteria. The rate schedules have been developed to cover the differing marketing arrangements in the Cumberland System under normal operation conditions. The Rate Schedules CBR–1–I, CSI–1–I, and CM–1–I, include rates for customers who receive 1500 kilowatt-hours of energy annually for each kilowatt of capacity. Rate Schedule CEK–1–I is for East Kentucky Power Cooperative, which receives a fixed quantity of energy annually from projects connected to the TVA transmission system plus the output of the Laurel Project. Rate Schedule CK–1–I is for customers in Kentucky who receive 1800 kilowatt-hours of energy annually for each kilowatt of capacity. Rate Schedule CC–1–J is for customers on the Duke Energy Progress, Western Division, (formerly Carolina Power & Light, Western Division). Rate Schedule CTV–1–I is for TVA and TVPPA. Rate Schedule CTVI–1–B is for customers inside the TVA system who choose a power supplier other than TVA.
Pursuant to Sections 302(a) and 301(b) of the Department of Energy Organization Act, Public Law 95–91, the functions of the Secretary of the Interior and the Federal Power Commission under Section 5 of the Flood Control Act of 1944, 16 U.S.C. 825s, relating to the Southeastern Power Administration (Southeastern or SEPA) were transferred to and vested in the Secretary of Energy. DOE Delegation Order No. 00–037.00A, effective October 25, 2013, granted the Deputy Secretary authority to confirm, approve, and place into effect Southeastern's rates on an interim basis. This rate order is issued by the Deputy Secretary pursuant to this delegation.
On December 22, 2011, the Commission issued an order approving Rate Schedules CBR–1–H, CSI–1–H, CEK–1–H, CM–1–H, CC–1–I, CK–1–H, CTV–1–H, CTVI–1–A, and Replacement-3 on a final basis for the sale of power from the Cumberland System (137 FERC ¶ 62,249). On July 10, 2013, the Deputy Secretary of the Department of Energy issued an order extending the rate schedules through September 30, 2015. The power marketing policy (58 FR 41762, Aug. 5, 1993) provides peaking capacity, along with 1500 kilowatt-hours of energy with each kilowatt of capacity, to customers outside the Tennessee Valley Authority (TVA) transmission system. Due to restrictions on the operations of the Center Hill Project imposed by the U.S. Army Corps of Engineers (Corps) as a precaution to prevent failure of the dam, Southeastern has not been able to provide full peaking capacity to these customers. A revised interim operating plan for the Cumberland System provides these customers with energy and reduced capacity.
Notice of a proposed rate adjustment was published in the
The comments have been condensed into the following seven major categories:
Southeastern's response follows each comment.
Response: Under section 1203 of the Water Resources Development Act of 1986, otherwise known as the Dam Safety Act, Congress capped the percentage of dam repair costs that may be assigned to project purposes (such as hydropower) at 15 percent. This cap applies to dam modification costs, ”the cause of which results from new hydrologic or seismic data or changes in the state-of-the-art design or construction criteria deemed necessary for safety purposes”. 33 U.S.C. 467n(a). The Dam Safety Act requires that dam safety repair costs be recovered within thirty years of completion of the work. If the Dam Safety Act is not applied, 100 percent of all costs are assigned to project purposes for cost recovery but the thirty-year cost recovery requirement does not attach. Southeastern continues to discuss, analyze and seek guidance on the issue from other relevant agencies.
Southeastern is finalizing a rate calculation that applies the cost sharing provision of the Dam Safety Act to the repair costs at Wolf Creek and Center Hill. However, Southeastern wishes to make clear that interagency discussions of this issue remain ongoing. If, as a result of those discussions, other relevant federal agencies provide a factual and legal basis for a contrary determination, the applicability of the Dam Safety Act would be reconsidered. Any such reconsideration would be the subject of an additional notice and comment process.
Response: Southeastern agrees that it retains full authority to ensure that the rates for power will be the lowest possible rates consistent with sound business principles within the meaning of Section 5 of the Flood Control Act of 1944.
Response: Southeastern determines the power rates regarding surplus energy from Corps projects are consistent with the rulemaking requirements of the Administrative Procedure Act. Southeastern is finalizing a rate calculation that applies the cost sharing provision of the Dam Safety Act to the repair costs at Wolf Creek and Center Hill. However, Southeastern wishes to make clear that interagency discussions of this issue remain ongoing. If, as a result of those
Response: Southeastern has a statutory duty to balance the recovery of costs of the Corps projects in a reasonable number of years while providing the lowest possible rates to preference customers consistent with sound business principles. Southeastern is finalizing a rate calculation that applies the cost sharing provision of the Dam Safety Act to the repair costs at Wolf Creek and Center Hill. However, Southeastern wishes to make clear that interagency discussions of this issue remain ongoing. If, as a result of those discussions, other relevant federal agencies provide a factual and legal basis for a contrary determination, the applicability of the Dam Safety Act would be reconsidered. Any such reconsideration would be the subject of an additional notice and comment process.
Response: Recovery of the costs of the Corps of Engineers projects from surplus power is within the authority of Department of Energy as provided by the Flood Control Act of 1944 and the Department of Energy Organization Act. Southeastern is finalizing a rate calculation that applies the cost sharing provision of the Dam Safety Act to the repair costs at Wolf Creek and Center Hill. However, Southeastern wishes to make clear that interagency discussions of this issue remain ongoing. If, as a result of those discussions, other relevant federal agencies provide a factual and legal basis for a contrary determination, the applicability of the Dam Safety Act would be reconsidered. Any such reconsideration would be the subject of an additional notice and comment process.
Response: Southeastern agrees a five-year term for the rate schedules is appropriate for the following reasons. Southeastern updates the repayment study used to develop and support the rate schedules annually to incorporate the latest cost information provided and to incorporate actual operating results. If the update of the repayment study demonstrates that the rates are not adequate to recover costs, Southeastern can initiate a rate adjustment. A five-year rate can be modified before the term of the rate schedules expires. A five-year term for the rate schedules will not interfere with Southeastern's ability to recover required costs.
Response: Consistent with applicable law, Southeastern strives to ensure that the rates for Cumberland System power remain competitive with the customers' resource alternatives. Marketing arrangements in the Cumberland System cover diverse markets and include diverse products. The existing marketing arrangements have been in place since the power marketing policy for the Cumberland System was established in 1983.
Southeastern has incorporated a true-up mechanism in these rate schedules to reduce the initial rate adjustment to a seven percent increase in the revenue requirement. This has been included to improve the competitiveness of the rate.
Response: The Power Marketing Administrations prepare repayment studies used to establish rates following the guidance of DOE Order RA6120.2 (Order). The Order defines the power system's repayment period to extend to the final year allowed under the cost recovery criteria for amortization of the original investment in all projects included in the power repayment study. The Order further provides future replacement costs will be included in the studies. The remaining investment in the Cumberland System includes investment placed in service with a 50-year service life. The Order requires future replacement cost estimates to be included in the repayment study as well. Southeastern believes the repayment study used to develop these proposed rate schedules complies with DOE Order RA6120.2.
Response: The comment refers to the approach used within the repayment study used to develop an optimized plan for repayment of the federal investment. Forced payments are normally used to override the normal priority of repayment when a lower-interest rate investment is reaching its required repayment date. Under highest interest first repayment, Southeastern defers repayment of the lowest interest rate investment to the extent possible while meeting repayment criteria. This achieves a lower revenue requirement.
Capitalized deficits are incurred when Southeastern does not have sufficient revenue to cover annual operating expenses and interest or meet a required payment. Generally, Southeastern does not plan to incur capitalized deficits as part of rate adjustment. The proposed rates do not include capitalized deficits, which would be inconsistent with the
Response: Southeastern staff proposed to employ an annual true-up to alter the rate each April accounting for actual hydropower investment completed and placed in service the prior fiscal year. A similar mechanism proved successful in the Kerr-Philpott System to address planned infrastructure rehabilitation. Comments supported or were silent with regard to enacting a true-up and Southeastern proposes to affect a true-up instrument to improve Federal hydropower's competitiveness in the energy market.
Response: Southeastern will discuss transmission service options with TVA in an effort to secure the most economical delivery method for our customers.
An examination of Southeastern's revised system power repayment study, prepared in August, 2015, for the Cumberland System, shows that with the rates established in this notice, all system power costs are paid within the 50-year repayment period, as required by existing law and DOE Order RA 6120.2. The Administrator of Southeastern has certified that the rates are consistent with applicable law and that they are the lowest possible rates to customers consistent with sound business principles.
Southeastern has reviewed the possible environmental impacts of the rate adjustment under consideration and has concluded that, because the adjusted rates would not significantly affect the quality of the human environment within the meaning of the National Environmental Policy Act of 1969, the proposed action is not a major Federal action for which preparation of an Environmental Impact Statement is required.
Information regarding these rates, including studies, and other supporting materials, is available for public review in the offices of Southeastern Power Administration, 1166 Athens Tech Road, Elberton, Georgia 30635–6711.
The rates hereinafter confirmed and approved on an interim basis, together with supporting documents, will be submitted promptly to FERC for confirmation and approval on a final basis.
In view of the foregoing and pursuant to the authority delegated to me by the Secretary of Energy, I hereby confirm and approve on an interim basis, effective October 1, 2015, attached Wholesale Power Rate Schedules CBR–1–I, CSI–1–I, CEK–1–I, CM–1–I, CC–1–J, CK–1–I, CTV–1–I, CTVI–1–B, and Replacement-3. The rate schedules shall remain in effect on an interim basis through September 30, 2020, unless such period is extended or until FERC confirms and approves them or substitute rate schedules on a final basis.
Dated: September 25, 2015.
The final marketing policy for the Cumberland System was published in the
The initial monthly base rate for capacity and energy sold under this rate schedule shall be:
Southeastern will give written notice to the Customer of the amount of the true-up by February 1 of each year.
This rate alternative will be implemented if a portion of the Cumberland Capacity can be scheduled, though not all the capacity in the published marketing policy can be scheduled. The initial base annual revenue requirement under this alternative is $63,500,000, including transmission and non-power revenue, the same as the annual revenue requirement in Scenarios 1 and 3. The annual revenue requirement from the sale of capacity and energy is $50,235,000. This Rate Scenario 2 will receive revenues from capacity that can be scheduled and the remainder from energy, at charges that will be determined at the time. Under Scenario 2, the cost of the TVA transmission credit will be passed to customers outside the TVA System. This rate alternative will be in effect if Southeastern chooses to modify the Revised Interim Operating Plan.
The annual revenue requirement and rates under this scenario 2 will be subject to annual adjustment on April 1 of each year based on transfers of specific power investment to plant-in-service for the preceding Fiscal Year. Under this scenario 2, the adjustment is an increase of $53,000 per year to the annual revenue requirement for each increase of $1,000,000 to specific power plant-in-service. Southeastern will give written notice to the Customer of the amount of the true-up by February 1 of each year.
The third rate alternative will go into effect once the Corps lifts all restrictions on the operation of the Center Hill Dam and Southeastern returns to operations that support the published marketing policy. The initial base rates for capacity, energy, and additional energy will be subject to annual true-up adjustment described below.
The initial monthly base rate for capacity and energy sold under this rate schedule shall be:
Southeastern will give written notice to the Customer of the amount of the true-up by February 1 of each year.
For such interruption or reduction due to conditions on the Administrator's system which have not been arranged for and agreed to in advance, the demand charge for capacity made available will be reduced as to the kilowatts of such capacity which have been interrupted or reduced in accordance with the following formula:
The final marketing policy for the Cumberland System was published in the
Southeastern will give written notice to the Customer of the amount of the true-up by February 1 of each year.
This rate alternative will be implemented if a portion of the Cumberland Capacity can be scheduled, though not all the capacity in the published marketing policy can be scheduled. The initial base annual revenue requirement under this alternative is $63,500,000, including transmission and non-power revenue, the same as the annual revenue requirement in Scenarios 1 and 3. The annual revenue requirement from the sale of capacity and energy is $50,235,000. This Rate Scenario 2 will receive revenues from capacity that can be scheduled and the remainder from energy, at charges that will be determined at the time. Under Scenario 2, the cost of the TVA transmission credit will be passed to customers outside the TVA System. This rate alternative will be in effect if Southeastern chooses to modify the Revised Interim Operating Plan.
The annual revenue requirement and rates under this scenario 2 will be subject to annual adjustment on April 1 of each year based on transfers of specific power investment to plant-in-service for the preceding Fiscal Year. Under this scenario 2, the adjustment is an increase of $53,000 per year to the annual revenue requirement for each increase of $1,000,000 to specific power plant-in-service. Southeastern will give written notice to the Customer of the amount of the true-up by February 1 of each year.
The third rate alternative will go into effect once the Corps lifts all restrictions on the operation of the Center Hill Dam and Southeastern returns to operations that support the published marketing policy. The initial base rates for capacity, energy, and additional energy will be subject to annual true-up adjustment described below.
Southeastern will give written notice to the Customer of the amount of the true-up by February 1 of each year.
For such interruption or reduction due to conditions on the Administrator's system which have not been arranged for and agreed to in advance, the demand charge for capacity made available will be reduced as to the kilowatts of such capacity which have been interrupted or reduced in accordance with the following formula:
The final marketing policy for the Cumberland System was published in the
Southeastern will give written notice to the Customer of the amount of the true-up by February 1 of each year.
This rate alternative will be implemented if a portion of the Cumberland Capacity can be scheduled, though not all the capacity in the published marketing policy can be
The third rate alternative will go into effect once the Corps lifts all restrictions on the operation of the Center Hill Dam and Southeastern returns to operations that support the published marketing policy. The initial base rates for capacity, energy, and additional energy will be subject to annual true-up adjustment described below.
Southeastern will give written notice to the Customer of the amount of the true-up by February 1 of each year.
For such interruption or reduction due to conditions on the Administrator's system which have not been arranged for and agreed to in advance, the demand charge for capacity made available will be reduced as to the kilowatts of such capacity which have been interrupted or reduced in accordance with the following formula:
The final marketing policy for the Cumberland System was published in the
Southeastern will give written notice to the Customers of the amount of the true-up by February 1 of each year.
This rate alternative will be implemented if a portion of the Cumberland Capacity can be scheduled, though not all the capacity in the published marketing policy can be scheduled. The initial base annual revenue requirement under this alternative is $63,500,000, including transmission and non-power revenue, the same as the annual revenue requirement in Scenarios 1 and 3. The annual revenue requirement from the sale of capacity and energy is $50,235,000. This Rate Scenario 2 will receive revenues from capacity that can be scheduled and the remainder from energy, at charges that will be determined at the time. Under Scenario 2, the cost of the TVA transmission credit will be passed to customers outside the TVA System. This rate alternative will be in effect if Southeastern chooses to modify the Revised Interim Operating Plan.
The annual revenue requirement and rates under this scenario 2 will be subject to annual adjustment on April 1 of each year based on transfers of specific power investment to plant-in-service for the preceding Fiscal Year. Under this scenario 2, the adjustment is an increase of $53,000 per year to the annual revenue requirement for each increase of $1,000,000 to specific power plant-in-service. Southeastern will give written notice to the Customers of the amount of the true-up by February 1 of each year.
The third rate alternative will go into effect once the Corps lifts all restrictions on the operation of the Center Hill Dam and Southeastern returns to operations that support the published marketing policy. The initial base rates for capacity, energy, and additional energy will be subject to annual true-up adjustment described below.
Southeastern will give written notice to the Customers of the amount of the true-up by February 1 of each year.
In the event that any portion of the capacity allocated to the Customers is not initially delivered to the Customers as of the beginning of a full contract year, the 1500 kilowatt hours shall be reduced
For such interruption or reduction due to conditions on the Administrator's system which have not been arranged for and agreed to in advance, the demand charge for capacity made available will be reduced as to the kilowatts of such capacity which have been interrupted or reduced
The final marketing policy for the Cumberland System was published in the
Southeastern will give written notice to the Customers of the amount of the true-up by February 1 of each year.
This rate alternative will be implemented if a portion of the Cumberland Capacity can be scheduled, though not all the capacity in the published marketing policy can be scheduled. The initial base annual revenue requirement under this alternative is $63,500,000, including transmission and non-power revenue, the same as the annual revenue requirement in Scenarios 1 and 3. The annual revenue requirement from the sale of capacity and energy is $50,235,000. This Rate Scenario 2 will receive revenues from capacity that can be scheduled and the remainder from energy, at charges that will be determined at the time. Under Scenario 2, the cost of the TVA transmission credit will be passed to customers outside the TVA System. This rate alternative will be in effect if Southeastern chooses to modify the Revised Interim Operating Plan.
The annual revenue requirement and rates under this scenario 2 will be subject to annual adjustment on April 1 of each year based on transfers of specific power investment to plant-in-service for the preceding Fiscal Year. Under this scenario 2, the adjustment is an increase of $53,000 per year to the annual revenue requirement for each
The third rate alternative will go into effect once the Corps lifts all restrictions on the operation of the Center Hill Dam and Southeastern returns to operations that support the published marketing policy. The initial base rates for capacity, energy, and additional energy will be subject to annual true-up adjustment described below.
Southeastern will give written notice to the Customers of the amount of the true-up by February 1 of each year.
The Duke Energy Progress transmission rate is subject to annual adjustment on April 1 of each year and will be computed subject to the formula in Appendix A attached to the Government—Duke Energy Progress contract.
The billing month for power sold under this schedule shall end at 2400 hours CDT or CST, whichever is currently effective on the last day of each calendar month.
The final marketing policy for the Cumberland System was published in the
Southeastern will give written notice to the Customers of the amount of the true-up by February 1 of each year.
This rate alternative will be implemented if a portion of the Cumberland Capacity can be scheduled, though not all the capacity in the published marketing policy can be scheduled. The initial base annual revenue requirement under this alternative is $63,500,000, including transmission and non-power revenue, the same as the annual revenue requirement in Scenarios 1 and 3. The annual revenue requirement from the sale of capacity and energy is $50,235,000. This Rate Scenario 2 will receive revenues from capacity that can be scheduled and the remainder from energy, at charges that will be determined at the time. Under Scenario 2, the cost of the TVA transmission credit will be passed to customers outside the TVA System. This rate alternative will be in effect if Southeastern chooses to modify the Revised Interim Operating Plan.
The annual revenue requirement and rates under this scenario 2 will be subject to annual adjustment on April 1 of each year based on transfers of specific power investment to plant-in-service for the preceding Fiscal Year. Under this scenario 2, the adjustment is an increase of $53,000 per year to the annual revenue requirement for each increase of $1,000,000 to specific power plant-in-service. Southeastern will give written notice to the Customers of the amount of the true-up by February 1 of each year.
The third rate alternative will go into effect once the Corps lifts all restrictions on the operation of the Center Hill Dam and Southeastern returns to operations that support the published marketing policy. The initial base rates for capacity, energy, and additional energy will be subject to annual true-up adjustment described below.
Southeastern will give written notice to the Customers of the amount of the true-up by February 1 of each year.
In the event that any portion of the capacity allocated to the Customers is not initially delivered to the Customers as of the beginning of a full contract year, the 1500 kilowatt hours shall be reduced
For billing purposes, each kilowatt of capacity will include 1500 kilowatt-hours energy per year. Customers will pay for additional energy at the additional energy rate.
The final marketing policy for the Cumberland System was published in the
Southeastern will give written notice to the TVA and TVPPA of the amount of the true-up by February 1 of each year.
This rate alternative will be implemented if a portion of the Cumberland Capacity can be scheduled, though not all the capacity in the published marketing policy can be scheduled. The initial base annual revenue requirement under this alternative is $63,500,000, including transmission and non-power revenue, the same as the annual revenue requirement in Scenarios 1 and 3. The annual revenue requirement from the sale of capacity and energy is $50,235,000. This Rate Scenario 2 will receive revenues from capacity that can be scheduled and the remainder from energy, at charges that will be determined at the time. Under Scenario 2, the cost of the TVA transmission credit will be passed to customers outside the TVA System. This rate alternative will be in effect if Southeastern chooses to modify the Revised Interim Operating Plan.
The annual revenue requirement and rates under this scenario 2 will be subject to annual adjustment on April 1 of each year based on transfers of specific power investment to plant-in-service for the preceding Fiscal Year. Under this scenario 2, the adjustment is an increase of $53,000 per year to the annual revenue requirement for each increase of $1,000,000 to specific power plant-in-service. Southeastern will give written notice to the TVA and TVPPA of the amount of the true-up by February 1 of each year.
The third rate alternative will go into effect once the Corps lifts all restrictions on the operation of the Center Hill Dam and Southeastern returns to operations that support the published marketing policy. The initial base rates for capacity, energy, and additional energy will be subject to annual true-up adjustment described below.
Southeastern will give written notice to the TVA and TVPPA of the amount of the true-up by February 1 of each year.
To meet the energy requirements of the Department of Energy's customers outside the TVA area (hereinafter called Outside Customers), 768,000 megawatt-hours of net energy shall be available annually (including 36,900 megawatt-hours of annual net energy to supplement energy available at Laurel Project). The energy requirement of the Outside Customers shall be available annually, divided monthly such that the maximum available in any month shall not exceed 240 hours per kilowatt of total Outside Customers contract demand, and the minimum amount available in any month shall not be less than 60 hours per kilowatt of total Outside Customers demand.
In the event that any portion of the capacity allocated to Outside Customers is not initially delivered to the Outside Customers as of the beginning of a full contract year, (July through June), the 1500 hours, plus any such additional energy required as discussed above, shall be reduced
The energy scheduled by TVA for use within the TVA System in any billing month shall be the total energy delivered to TVA less (1) an adjustment for fast or slow meters, if any, (2) an adjustment for Barkley-Kentucky Canal of 15,000 megawatt-hours of energy each month which is delivered to TVA under the agreement from the Cumberland Projects without charge to TVA, (3) the energy scheduled by the Department of Energy in said month for the Outside Customers plus losses of two percent [2%], and (4) station service energy furnished by TVA.
Each kilowatt of capacity will include 1500 kilowatt-hours of energy per year, which is defined as base energy. Energy received in excess of 1500 kilowatt-hours per kilowatt will be subject to an additional energy charge identified in the monthly rates section of this rate schedule.
For such interruption or reduction (exclusive of any restrictions provided in the agreement) due to conditions on the Department of Energy's system which have not been arranged for and agreed to in advance, the demand charge for scheduled capacity made available to TVA will be reduced as to the kilowatts of such scheduled capacity which have been so interrupted or reduced for each day in accordance with the following formula:
The final marketing policy for the Cumberland System was published in the
Southeastern will give written notice to the Customer of the amount of the true-up by February 1 of each year.
Proceedings before FERC or other overseeing entity involving the OATT or the Distribution charge may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission, ancillary services, and distribution charges paid by the Government in behalf of the Customer. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
This rate alternative will be implemented if a portion of the Cumberland Capacity can be scheduled, though not all the capacity in the published marketing policy can be scheduled. The initial base annual revenue requirement under this alternative is $63,500,000, including transmission and non-power revenue, the same as the annual revenue requirement in Scenarios 1 and 3. The annual revenue requirement from the sale of capacity and energy is $50,235,000. This Rate Scenario 2 will receive revenues from capacity that can be scheduled and the remainder from energy, at charges that will be determined at the time. Under Scenario 2, the cost of the TVA transmission credit will be passed to customers outside the TVA System. This rate alternative will be in effect if Southeastern chooses to modify the Revised Interim Operating Plan.
The annual revenue requirement and rates under this scenario 2 will be subject to annual adjustment on April 1 of each year based on transfers of specific power investment to plant-in-service for the preceding Fiscal Year. Under this scenario 2, the adjustment is an increase of $53,000 per year to the annual revenue requirement for each increase of $1,000,000 to specific power plant-in-service. Southeastern will give written notice to the Customer of the amount of the true-up by February 1 of each year.
The third rate alternative will go into effect once the Corps lifts all restrictions on the operation of the Center Hill Dam and Southeastern returns to operations that support the published marketing policy. The initial base rates for capacity, energy, and additional energy
Southeastern will give written notice to the Customer of the amount of the true-up by February 1 of each year.
Proceedings before FERC or other overseeing entity involving the OATT or the Distribution charge may result in the separation of charges currently included in the transmission rate. In this event, the Government may charge the Customer for any and all separate transmission, ancillary services, and distribution charges paid by the Government in behalf of the Customer. These charges could be recovered through a capacity charge or an energy charge, as determined by the Government.
The Customer will receive a ratable share of their capacity, in accordance with the Government-Customer Contract.
For such interruption or reduction (exclusive of any restrictions provided in the agreement) due to conditions on the Department of Energy's system which have not been arranged for and agreed to in advance, the demand charge for scheduled capacity made available to the Customer will be reduced as to the kilowatts of such scheduled capacity which have been so interrupted or reduced for each day in accordance with the following formula:
Department of Energy, Office of Science.
Notice of Open Teleconference.
This notice sets forth the schedule and summary agenda for a conference call of the President's Council of Advisors on Science and Technology (PCAST), and describes the functions of the Council. The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires that public notice of these meetings be announced in the
October 23, 2015, 3:00 p.m. to 3:30 p.m.
To receive the call-in information, attendees should register for the conference call on the PCAST Web site,
Information regarding the meeting agenda, time, location, and how to register for the meeting is available on the PCAST Web site at:
The President's Council of Advisors on Science and Technology (PCAST) is an advisory group of the nation's leading scientists and engineers, appointed by the President to augment the science and technology advice available to him from inside the White House, cabinet departments, and other Federal agencies. See the Executive Order at
The public comment period for this meeting will take place on October 23, 2015, at a time specified in the meeting agenda posted on the PCAST Web site at:
Please note that because PCAST operates under the provisions of FACA, all public comments and/or presentations will be treated as public documents and will be made available for public inspection, including being posted on the PCAST Web site.
Energy Efficiency and Renewable Energy, Department of Energy.
Notice of availability.
The U.S. Department of Energy (DOE or Department) has updated its methodology for assessing the cost-effectiveness of building energy codes. The Department relies upon this methodology in evaluating both potential code changes and entire new editions of model codes, such as the International Energy Conservation Code (IECC) and the American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) Standard 90.1. DOE developed its methodology through a public process, and reviews its methods regularly to ensure its underlying analysis and assumptions remain valid.
Jeremiah Williams; U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, 1000 Independence Avenue SW. EE–5B, Washington, DC 20585; (202) 287–1941;
For legal issues, please contact Kavita Vaidyanathan; U.S. Department of Energy, Office of the General Counsel, 1000 Independence Avenue SW. GC–33, Washington, DC 20585; (202) 586–0669;
DOE issued a recent request for information (RFI) to seek public input on proposed updates to its methodology, and as part of a regular effort to ensure its analysis and underlying assumptions remain valid (80 FR 19974).
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A summary of the changes to the DOE methodology is available in the associated public docket (EERE–2015–BT–BC–0001).
1. Comments which prompted revisions to the DOE methodology; and
2. Comments not resulting in a revision to the methodology, but which raised legitimate issues for which DOE wishes to provide its rationale for leaving the methodology unchanged.
In addition, a `redline' document is provided in the public docket.
More information on the methodology, including the resulting energy and cost analysis, is available on the DOE Building Energy Codes Program Web site:
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy.
Notice and request for comments.
The Department of Energy (DOE) invites public comment on a proposed collection of information that DOE is developing for submission to the Office of Management and Budget (OMB) pursuant to the Paperwork Reduction Act of 1995. The proposed collection of information relates to three of DOE's Better Buildings Programs. Comments are invited on: (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments regarding this proposed information collection must be received on or before December 1, 2015. If you anticipate difficulty in submitting comments within that period, contact the person listed in
Written comments may be sent Andre de Fontaine, EE–5A/Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585, by fax at 202–586–5234, or by email at
Requests for additional information or copies of the information collection instrument and instructions should be directed to Andre de Fontaine, EE–5F/Forrestal Building, 1000 Independence Avenue SW., Washington, DC 20585, by fax at 202–586–5234, or by email at
This information collection request contains:
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The leadership initiatives under the Better Buildings Initiative covered under this Information Collection Request are intended to drive greater energy and water efficiency in the commercial, public, residential, data center, and industrial marketplace to reduce pollution, cut costs, and create jobs. This will be accomplished by highlighting the ways participants overcome market barriers to greater efficiency with replicable solutions. The program will showcase real solutions and partner with industry leaders to better understand policy and technical opportunities. There are three types of information to be collected from primary participants, also referred to as “Partners”: (1) Background data, including contact information, a partnership agreement form, logo(s), information needed to support public announcements, updates on participants' showcase projects, and an energy savings goal; (2) Portfolio-wide energy performance information; and (3) Information on market innovations participants are including in their energy efficiency processes. Background data will primarily be used to develop Web site content that will be publically available. Portfolio-wide facility-level energy performance information will be used by DOE to measure the participants' progress in meeting the goals of the program, as well as to aggregate the change in energy performance and related metrics for the entire program. Information on market innovation will be used to highlight successful strategies participants use to overcome challenges, and will be publicly available. Additional background information is being collected from “Allies”, financial and utility organizations that make a public commitment to support the energy efficiency marketplace. Background information including name, commitment in terms of dollars committed by financial allies, or percent of commercial customer class committed by utility allies, and a company logo will be used to develop publically available Web site content. Responses to the DOE's Information Collection Request will be voluntary.
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Section 421 of the Energy Independence and Security Act of 2007 (42 U.S.C. 17081); Section 911 of the Energy Policy Act of 2005, as amended (42 U.S.C. 16191).
This is a supplemental notice in the above-referenced proceeding of Koch Energy Services, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is October 15, 2015.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Latigo Wind Park, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is October 15, 2015.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following land acquisition reports:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on September 18, 2015, the North American Electric Reliability Corporation (NERC) submitted a compliance filing and report in accordance with the Federal Energy Regulatory Commission's Order (FERC or Commission) in
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
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j. The San Diego County Water Authority and City of San Diego filed their request to use the Traditional Licensing Process on July 28, 2015. The San Diego County Water Authority and City of San Diego provided public notice of their request on July 28, 2015. In a letter dated September 28, 2015, the Director of the Division of Hydropower Licensing approved the San Diego County Water Authority and City of San Diego's request to use the Traditional Licensing Process.
k. With this notice, we are initiating informal consultation with the U.S. Fish and Wildlife Service under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR part 402. We are also initiating consultation with the California State Historic Preservation Officer, as required by section 106, National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.
l. With this notice, we are designating the San Diego County Water Authority
m. The San Diego County Water Authority and City of San Diego filed a Pre-Application Document (PAD; including a proposed process plan and schedule) with the Commission, pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site (
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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j. Deadline for filing motions to intervene and protests, comments, recommendations, preliminary terms and conditions, and preliminary prescriptions: 60 days from the issuance date of this notice; reply comments are due 75 days from the issuance date of this notice.
The Commission strongly encourages electronic filing. Please file motions to intervene, protests, comments, recommendations, preliminary terms and conditions, and preliminary fishway prescriptions using the Commission's eFiling system at
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
k. This application has been accepted for filing and is now ready for environmental analysis.
l. The proposed project would be located at the Commonwealth of Kentucky's existing Kentucky River Lock and Dam No. 11, which was originally constructed from 1904 to 1906 by the U.S. Corps of Engineers for the purpose of transportation. There is a single lock chamber with a total length of 148 feet and width of 52 feet on the south end of the dam. However, a concrete bulkhead and miter gates were installed in front of the lock structure and it is no longer being used for navigational purposes. The Kentucky River Authority currently operates the dam to maintain the upriver channel depth and an impoundment to withdraw water for municipal drinking water purposes. The impoundment also serves the purposes of providing opportunities for recreation and habitat for fish and wildlife.
The proposed project would be operated in a run-of-river mode. The proposed project would include: (1) The existing 579-acre impoundment, with a normal pool elevation of 585.60 feet North American Vertical Datum of 1988; (2) the existing 208-foot-long, 35-foot-high fixed crest dam; (3) a new 275-foot-long, 75-foot-wide reinforced concrete intake channel equipped with trashracks with 3-inch bar spacing; (4) a new 140-foot-long, 64.5-foot-wide powerhouse that includes a 30-foot-long, 47-foot- high, 64.5-foot-wide intake and headgate structure built within the existing lock structure; (5) two new horizontal Pit Kaplan turbine generator units each rated at 2.5 megawatts (MW); (6) a new 190-foot-long, 78-foot-wide tailrace; (7) a new 40-foot-long, 40-foot-wide substation; (8) a new 212-foot, 4.16 kilovolt (kV) underground transmission cable from the generators to the new substation and a new approximately 4.5-mile-long, 69- kV overhead transmission line extending from the new substation at the powerhouse to an existing substation located near Waco, Kentucky; and (9) appurtenant facilities. The proposed project would generate about 18,500 megawatt-hours annually, which would be sold to a local utility.
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Register online at
n. Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, and .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
All filings must (1) bear in all capital letters the title “PROTEST”, “MOTION TO INTERVENE”, “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,” “PRELIMINARY TERMS AND CONDITIONS,” or “PRELIMINARY FISHWAY PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
o. Any qualified applicant desiring to file a competing application must submit to the Commission, on or before the specified intervention deadline date, a competing development application, or a notice of intent to file such an application. Submission of a timely notice of intent allows an interested person to file the competing development application no later than 120 days after the specified intervention deadline date. Applications for preliminary permits will not be accepted in response to this notice.
A notice of intent must specify the exact name, business address, and telephone number of the prospective applicant, and must include an unequivocal statement of intent to submit a development application. A notice of intent must be served on the applicant named in this public notice.
1. By letter filed November 26, 2014, and supplemented on July 23, 2015, Mansfield Hollow Hydro, LLC (Mansfield Hydro) informed the Commission that the exemption from licensing for the Mansfield Hollow Hydroelectric Project No. 12551, had been transferred to Mansfield Hydro.
2. The exemption was originally issued to Salvatore and Michelle Shifrin (Shifrins) on June 17, 2009.
3. The transfer of an exemption does not require Commission approval. Thus, the Shifrins' lease of project properties and operating rights to Mansfield Hydro effectively transferred the exemption to Mansfield Hydro.
4. Mansfield Hydro is the exemptee of the Mansfield Hollow Hydroelectric Project No. 12551. The exemptee's contact is: Stephen Fisk, General Manager, Mansfield Hollow Hydro, LLC, c/o O'Connell Energy Group, 57 Suffolk Street, Suite 200, Holyoke, MA 01040.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
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j. Deadline for filing comments, motions to intervene, and protests is 15 days from the issuance date of this notice by the Commission.
All documents may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
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You may also register online at
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
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Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission) regulations, 18 CFR part 380 (Order No. 486, 52 FR 47897), the Office of Energy Projects has reviewed the application for license for the Vanceboro Dam Storage Project, located on the East Branch of the St. Croix River Washington County, Maine. The project does not occupy any federal land.
Staff prepared a final environmental assessment (EA), which analyzes the potential environmental effects of licensing the project, and concludes that licensing the project, with appropriate environmental protective measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
A copy of the final EA is on file with the Commission and is available for public inspection. The final EA may also be viewed on the Commission's Web site at
Michael Watts at (202) 502–6123 or
Take notice that the following hydroelectric application has been filed with the Federal Energy Regulatory Commission and is available for public inspection:
a. Type of Application: Application for Non-Capacity Amendment.
b. Project No.: 2662–027.
c. Date Filed: September 15, 2015.
d. Applicant: FirstLight Hydro Generating Company (licensee).
e. Name of Project: Scotland Hydroelectric Project.
f. Location: Windham County, Connecticut.
g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791(a)–825(r).
h. Applicant Contact: Howard Person, Plant Manager, (860) 350–3617, or
i. FERC Contact: Alicia Burtner, (202) 502–8038, or
j. Deadline for filing comments, motions to intervene, and protests is 30 days from the issuance date of this notice by the Commission.
All documents may be filed electronically via the Internet. See, 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site at
k. Description of Request: The licensee requests a non-capacity
l. Locations of the Application: A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street NE., Room 2A, Washington, DC 20426, or by calling (202) 502–8371. This filing may also be viewed on the Commission's Web site at
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n. Comments, Protests, or Motions to Intervene: Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
o. Filing and Service of Responsive Documents: Any filing must (1) bear in all capital letters the title “COMMENTS”, “PROTEST”, or “MOTION TO INTERVENE” as applicable; (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, motions to intervene, or protests must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). All comments, motions to intervene, or protests should relate to the proposed non-capacity amendment. Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application. If an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
This is a supplemental notice in the above-referenced proceeding of Baltimore Power Company LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is October 15, 2015.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of Sandstone Solar LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is October 15, 2015.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
This is a supplemental notice in the above-referenced proceeding of National Gas & Electric, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is October 15, 2015.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
The staff of the Federal Energy Regulatory Commission (FERC or Commission) will prepare an environmental document that will discuss the environmental impacts of the Fields Point Liquefaction Project involving construction and operation of facilities by National Grid LNG, LLC (NGLNG) in Providence, Rhode Island. The Commission will use this environmental document in its decision-making process to determine whether the project is in the public convenience and necessity.
This notice announces the opening of the scoping process the Commission will use to gather input from the public and interested agencies on the project. You can make a difference by providing us with your specific comments or concerns about the project. Your comments should focus on the potential environmental effects, reasonable alternatives, and measures to avoid or lessen environmental impacts. Your input will help the Commission staff determine what issues they need to evaluate in the environmental document. To ensure that your comments are timely and properly recorded, please send your comments so that the Commission receives them in Washington, DC on or before October 26, 2015.
If you sent comments on this project to the Commission before the opening of this docket on June 22, 2015, you will need to file those comments in Docket No. PF15–28–000 to ensure they are considered as part of this proceeding.
This notice is being sent to the Commission's current environmental mailing list for this project. State and local government representatives should notify their constituents of this planned project and encourage them to comment on their areas of concern.
The following libraries will be provided copies of this notice in English and Spanish:
For your convenience, there are four methods you can use to submit your comments to the Commission. The Commission will provide equal consideration to all comments received, whether filed in written form or provided verbally during a FERC scoping meeting. The Commission encourages electronic filing of comments and has expert staff available to assist you at (202) 502–8258 or
(1) You can file your comments electronically using the
(2) You can file your comments electronically by using the
(3) You can file a paper copy of your comments by mailing them to the following address. Be sure to reference the project docket number (PF15–28–000) with your submission: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Room 1A, Washington, DC 20426.
(4) In lieu of sending written or electronic comments, the Commission invites you to attend the public scoping meeting its staff will conduct in the project area, scheduled as follows: FERC Public Scoping Meeting, Fields Point Liquefaction Project, October 8, 2015, 6:30 p.m., Juanita Sanchez Educational Complex at the Providence Academy of International Studies High School, 182 Thurbers Avenue, Providence, RI.
We will begin our sign up of speakers at 6 p.m. The scoping meeting will begin at 6:30 p.m. with a description of our environmental review process by Commission staff, after which speakers will be called. The meeting will end once all speakers have provided their comments or at 10:30 p.m., whichever comes first. Please note that there may be a time limit of three minutes to present comments, and speakers should structure their comments accordingly.
If time limits are implemented, they will be strictly enforced to ensure that as many individuals as possible are given an opportunity to comment. The meetings will be recorded by a court reporter to ensure comments are accurately recorded. Transcripts will be entered into the formal record of the Commission proceeding.
Please note this is not your only public input opportunity; please refer to the review process flow chart in Appendix 1.
NGLNG plans to add liquefaction capability at the existing liquefied natural gas (LNG) storage facility located at Fields Point in Providence, Rhode Island. The Project would include one new 20 million standard cubic feet per day gas pretreatment and liquefaction system to convert natural gas into LNG by cooling it to −260 °F.
The storage operation at Fields Point has been in existence for approximately 40 years and does not include any liquefaction equipment. The natural gas delivered to the facility via the existing pipeline would be pre-treated, liquefied, and conveyed to the existing storage tank.
A figure showing the general location of the existing and proposed facilities is shown in Appendix 2. If approved, NGLNG plans to begin construction of the Project in late 2016.
The existing facility is in an industrial area along the Providence River at 121 Terminal Road. The total land proposed to be disturbed for construction of this project is reported to be approximately 8.91 acres. The liquefaction system would occupy approximately 1.85 acres within the existing facility's footprint.
The National Environmental Policy Act (NEPA) requires the Commission to take into account the environmental impacts that could result from an action whenever it considers the issuance of a Certificate of Public Convenience and Necessity. NEPA also requires us
In the environmental document, we will discuss impacts that could occur as a result of the construction and operation of the planned project under these general headings:
• Geology and soils;
• land use;
• water resources, fisheries, and wetlands;
• cultural resources;
• vegetation and wildlife;
• air quality and noise;
• socioeconomics;
• endangered and threatened species;
• public safety; and
• cumulative impacts.
We will also evaluate possible alternatives to the planned project or portions of the project, and make recommendations on how to lessen or avoid impacts on the various resource areas.
Although no formal application has been filed, we have already initiated our NEPA review under the Commission's pre-filing process. The purpose of the pre-filing process is to encourage early involvement of interested stakeholders and to identify and resolve issues before the FERC receives an application. As part of our pre-filing review, we have begun to contact some federal and state agencies to discuss their involvement in the scoping process and the preparation of the environmental document.
The environmental document will present our independent analysis of the issues. The environmental document will be available in the public record through eLibrary. Depending on the comments received during the scoping process, we may also publish and distribute the environmental document to the public for an allotted comment period. If the document is published and distributed to the public, we will consider all timely comments on the environmental document before we make our recommendations to the Commission. To ensure we have the opportunity to consider and address your comments, please carefully follow the instructions in the Public Participation section, beginning on page 2.
With this notice, we are asking agencies with jurisdiction by law and/or special expertise with respect to the environmental issues related to this project to formally cooperate with us in the preparation of the environmental document.
In accordance with the Advisory Council on Historic Preservation's implementing regulations for Section 106 of the National Historic Preservation Act, we are using this notice to initiate consultation with the applicable State Historic Preservation Office(s), and to solicit their views and those of other government agencies, interested Indian tribes, and the public on the project's potential effects on historic properties.
The environmental mailing list includes federal, state, and local government representatives and agencies; elected officials; environmental and public interest groups; Native American Tribes; other interested parties; and local libraries and newspapers. This list also includes all affected landowners (as defined in the Commission's regulations) who are potential right-of-way grantors, whose property may be used temporarily for project purposes, or who own homes within certain distances of aboveground facilities, and anyone who submits comments on the project. We will update the environmental mailing list as the analysis proceeds to ensure that we send the information related to this environmental review to all individuals, organizations, and government entities interested in and/or potentially affected by the planned project.
If we publish and distribute the environmental document, copies of it will be sent to the environmental mailing list for public review and comment. If you would prefer to receive a paper copy of the document instead of the CD version or would like to remove your name from the mailing list, please return the attached Information Request (Appendix 3).
Once NGLNG files its application with the Commission, you may want to become an “intervenor” which is an official party to the Commission's proceeding. Intervenors play a more formal role in the process and are able to file briefs, appear at hearings, and be heard by the courts if they choose to appeal the Commission's final ruling. An intervenor formally participates in the proceeding by filing a request to intervene. Motions to intervene are more fully described at
Additional information about the project is available from the Commission's Office of External Affairs, at (866) 208–FERC, or on the FERC Web site (
In addition, the Commission offers a free service called eSubscription which allows you to keep track of all formal issuances and submittals in specific dockets. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to
Finally, public meetings or site visits will be posted on the Commission's calendar located at
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceedig.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice of Settlement.
Under 122(h) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA), the United States Environmental Protection Agency has entered into a settlement with the Blue Ridge Plating Company, Inc. and Carolyn Benfield concerning the Blue Ridge Plating Company Superfund Site located in Arden, Buncombe County North Carolina. The settlement addresses recovery of CERCLA costs for a cleanup action performed by the EPA at the Site.
The Agency will consider public comments on the settlement until November 2, 2015. The Agency will consider all comments received and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations which indicate that the amended settlement is inappropriate, improper, or inadequate.
Copies of the settlement are available from the Agency by contacting Ms. Paula V. Painter, Program Analyst using the contact information provided in this notice. Comments may also be submitted by referencing the Site's name through one of the following methods:
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Paula V. Painter at 404/562–8887.
Environmental Protection Agency (EPA).
Notice.
This notice announces EPA's approval of the State of Georgia's request to revise/modify certain of its EPA-authorized programs to allow electronic reporting.
EPA's approval is effective November 2, 2015 for the State of Georgia's National Primary Drinking Water Regulations Implementation program, if no timely request for a public hearing is received and accepted by the Agency, and on October 2, 2015 for the State of Georgia's other authorized programs.
Karen Seeh, U.S. Environmental Protection Agency, Office of Environmental Information, Mail Stop 2823T, 1200 Pennsylvania Avenue NW., Washington, DC 20460, (202) 566–1175,
On October 13, 2005, the final Cross-Media Electronic Reporting Rule (CROMERR) was published in the
On January 14, 2010, the Georgia Department of Natural Resources (GA DNR) submitted an application entitled Georgia Environmental Protection Division Online System for revisions/modifications to its EPA-authorized programs under title 40 CFR. EPA reviewed GA DNR's request to revise/modify its EPA-authorized programs and, based on this review, EPA determined that the application met the standards for approval of authorized program revisions/modifications set out in 40 CFR part 3, subpart D. In accordance with 40 CFR 3.1000(d), this notice of EPA's decision to approve Georgia's request to revise/modify its following EPA-authorized programs to allow electronic reporting under 40 CFR parts 51, 52, 60, 61, 63, 65, 68, 70, 71, 72, 74, 75, 79, 82, 86, 90, 91, 92, 94, 122, 123, 141, 146, 239, 262, 264, 266, 268, 270, 280, 403, and 437, is being published in the
GA DNR was notified of EPA's determination to approve its application with respect to the authorized programs listed above.
Also, in today's notice, EPA is informing interested persons that they may request a public hearing on EPA's action to approve the State of Georgia's request to revise its authorized public water system program under 40 CFR part 142, in accordance with 40 CFR 3.1000(f). Requests for a hearing must be submitted to EPA within 30 days of publication of today's
In the event a hearing is requested and granted, EPA will provide notice of the hearing in the
Environmental Protection Agency (EPA).
Notice.
In compliance with the Paperwork Reduction Act (PRA), this document announces that EPA is planning to submit an Information Collection Request (ICR) to the Office of Management and Budget (OMB). The ICR, entitled: “EPA's Safer Choice Partner of the Year Awards Program” and identified by EPA ICR No. 2450.02 and OMB Control No. 2070–0184, represents the renewal of an existing ICR that is scheduled to expire on January 31, 2016. Before submitting the ICR to OMB for review and approval, EPA is soliciting comments on specific aspects of the proposed information collection that is summarized in this document. The ICR and accompanying material are available in the docket for public review and comment.
Comments must be received on or before December 1, 2015.
Submit your comments, identified by docket identification (ID) number EPA–HQ–OPPT–2014–0736, 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
Pursuant to PRA section 3506(c)(2)(A) (44 U.S.C. 3506(c)(2)(A)), EPA specifically solicits comments and information to enable it to:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility.
2. Evaluate the accuracy of the Agency's estimates of the burden of the proposed collection of information, including the validity of the methodology and assumptions used.
3. Enhance the quality, utility, and clarity of the information to be collected.
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated electronic, mechanical, or other technological collection techniques or other forms of information technology,
The Partner of the Year Awards will be an annual event, with recognition for Safer Choice stakeholder organizations from five broad categories: (1) Formulators/product manufacturers (of both consumer and institutional/industrial (I/I) products), (2) purchasers and distributors, (3) retailers, (4) supporters (
Responses to this information collection are voluntary. Respondents may claim all or part of a response confidential. EPA will disclose information that is covered by a claim of confidentiality only to the extent permitted by, and in accordance with, the procedures in TSCA section 14 and 40 CFR part 2.
The ICR, which is available in the docket along with other related materials, provides a detailed explanation of the collection activities and the burden estimate that is only briefly summarized here:
There is no change in the total estimated respondent burden compared with that identified in the ICR currently approved by OMB.
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. EPA will issue another
44 U.S.C. 3501
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.
With this document, EPA is opening the public comment period for several registration reviews. Registration review is EPA's periodic review of pesticide registrations to ensure that each pesticide continues to satisfy the statutory standard for registration, that is, the pesticide can perform its intended function without unreasonable adverse effects on human health or the environment. Registration review dockets contain information that will assist the public in understanding the types of information and issues that the Agency may consider during the course of registration reviews. Through this program, EPA is ensuring that each pesticide's registration is based on current scientific and other knowledge, including its effects on human health and the environment. This document also announces the Agency's intent not to open a registration review docket for chloroneb, maple lactone, cacodylic acid, neodecamide N-mythyl, milbemectin, and dimethepin. These pesticides do not currently have any actively registered pesticide products and are not, therefore, scheduled for review under the registration review program.
Comments must be received on or
Submit your comments identified by the docket identification (ID) number for the specific pesticide of interest provided in the table in Unit III. A., 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
This action is directed to the public in general, and may be of interest to a wide range of stakeholders including environmental, human health, farmworker, and agricultural advocates; the chemical industry; pesticide users; and members of the public interested in the sale, distribution, or use of pesticides. Since others also may be interested, the Agency has not attempted to describe all the specific entities that may be affected by this action.
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EPA is initiating its reviews of the pesticides identified in this document pursuant to section 3(g) of the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) (7 U.S.C. 136a(g)) and the Procedural Regulations for Registration Review at 40 CFR part 155, subpart C. Section 3(g) of FIFRA provides, among other things, that the registrations of pesticides are to be reviewed every 15 years. Under FIFRA, a pesticide product may be registered or remain registered only if it meets the statutory standard for registration given in FIFRA section 3(c)(5) (7 U.S.C. 136a(c)(5)). When used in accordance with widespread and commonly recognized practice, the pesticide product must perform its intended function without unreasonable adverse effects on the environment; that is, without any unreasonable risk to man or the environment, or a human dietary risk from residues that result from the use of a pesticide in or on food.
As directed by FIFRA section 3(g), EPA is reviewing the pesticide registrations identified in the table in this unit to assure that they continue to satisfy the FIFRA standard for registration—that is, they can still be used without unreasonable adverse effects on human health or the environment. A pesticide's registration review begins when the Agency establishes a docket for the pesticide's registration review case and opens the docket for public review and comment. At present, EPA is opening registration review dockets for the cases identified in the following table.
EPA is also announcing that it will not be opening a docket for chloroneb (case #0007), maple lactone (case #6000), cacodylic acid (case #2080), neodecamide N-mythyl (case #7428), milbemectin (case #7623), and dimethipin (case #3063) because these pesticides are not included in any products actively registered under FIFRA section 3. The Agency will take separate actions to propose revocation of any affected tolerances that are not supported for import purposes only.
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• An overview of the registration review case status.
• A list of current product registrations and registrants.
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• Risk assessments.
• Bibliographies concerning current registrations.
• Summaries of incident data.
• Any other pertinent data or information.
Each docket contains a document summarizing what the Agency currently knows about the pesticide case and a preliminary work plan for anticipated data and assessment needs. Additional documents provide more detailed information. During this public comment period, the Agency is asking that interested persons identify any additional information they believe the Agency should consider during the registration reviews of these pesticides. The Agency identifies in each docket the areas where public comment is specifically requested, though comment in any area is welcome.
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• To ensure that EPA will consider data or information submitted, interested persons must submit the data or information during the comment period. The Agency may, at its discretion, consider data or information submitted at a later date.
• The data or information submitted must be presented in a legible and useable form. For example, an English translation must accompany any material that is not in English and a written transcript must accompany any information submitted as an audiographic or videographic record. Written material may be submitted in paper or electronic form.
• Submitters must clearly identify the source of any submitted data or information.
• Submitters may request the Agency to reconsider data or information that the Agency rejected in a previous review. However, submitters must explain why they believe the Agency should reconsider the data or information in the pesticide's registration review.
As provided in 40 CFR 155.58, the registration review docket for each pesticide case will remain publicly accessible through the duration of the registration review process; that is, until all actions required in the final decision on the registration review case have been completed.
7 U.S.C. 136
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501–3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before November 2, 2015. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information or copies of the information collection, contact Nicole Ongele at (202) 418–2991.
To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page
The following proposed revisions have been made to the FCC Form 498 for which we seek OMB approval:
• Form name changed to “Service Provider and Billed Entity Identification Number and Contact Information Form”;
• Added an additional field in block 3 for a company's Federal Registration Number (FRN);
• Added a column for the Study Area Code Company Name in block 8;
• Added the ability for a carrier to designate an alternate bank account for the payment of BEAR funds in block 11;
• Added a box in block 1 and a supplemental information sheet to allow respondents to include information about affiliates;
• Updated the Principal Communications Types in block 14 to include additional business types as listed on the FCC Form 499–A; and
• Added a box after every program on the form that will allow service providers to cease participation in the associated program without having to deactivate their entire SPIN.
Corresponding adjustments were made to the instructions to reflect the proposed changes to the FCC Form 498. The information collected on the FCC Form 498 is used by USAC to disburse federal universal service support consistent with the specifications of eligible participants in the universal service programs. FCC Form 498 submissions also provide USAC with updated contact information so that USAC can contact universal service fund participants when necessary. Without such information, USAC would not be able to distribute support to the proper entities and this would prevent the Commission from fulfilling its statutory responsibilities under the Act to preserve and advance universal service.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 29, 2015.
A. Federal Reserve Bank of St. Louis (Yvonne Sparks, Community Development Officer) P.O. Box 442, St. Louis, Missouri 63166–2034:
1.
B. Federal Reserve Bank of Dallas (Robert L. Triplett III, Senior Vice President) 2200 North Pearl Street, Dallas, Texas 75201–2272:
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Board of Governors of the Federal Reserve System, September 29, 2015.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than October 19, 2015.
A. Federal Reserve Bank of Minneapolis (Jacquelyn K. Brunmeier, Assistant Vice President) 90 Hennepin Avenue, Minneapolis, Minnesota 55480–0291:
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Federal Trade Commission.
Notice.
The Federal Trade Commission (the “Commission” or “FTC”) is giving notice that there will be no fee increase for entities accessing
Requests for copies of this document should be sent to this address: National Do Not Call Registry Program, Federal Trade Commission, 600 Pennsylvania Avenue NW., Mail Stop CC–9232, Washington, DC 20580. Copies of this document are also available on the Internet at the Commission's Web site:
Nicholas Mastrocinque, (202) 326–3188, Bureau of Consumer Protection, Federal Trade Commission, 600 Pennsylvania Avenue NW., Mail Stop CC–9232, Washington, DC 20580.
The Do-Not-Call Registry Fee Extension Act of 2007 (Pub. L. 110–188, 122 Stat. 635) (“Act”), mandates a specific fee structure to use in determining the fees for accessing the Registry. According to the Act, for each year beginning after fiscal year 2009, the dollar amounts charged shall be increased by an amount equal to the amounts specified in the Act, whichever fee is applicable, multiplied by the percentage (if any) by which the average of the monthly consumer price index (for all urban consumers published by the Department of Labor) (“CPI”) for the most recently ended 12-month period ending on June 30 exceeds the CPI for the 12-month period ending June 30, 2008. The Act also states that any increase shall be rounded to the nearest dollar and that there shall be no increase in the dollar amount if the CPI change is less than 1 percent. We measure this change in CPI from the time of the previous fee increase.
Last year, for fiscal year 2015, we calculated an increase in the CPI of 1.56 percent, and adjusted the fees accordingly (79 FR 51477 (August 29, 2014)). The average value of the CPI for the 12-month period ending June 2014 was 234.966; the average for the 12 months ending June 2015 was 236.677. This is an increase of 0.73 percent, less than the one percent threshold to trigger an increase.
As this falls below the statute's 1 percent required change in the CPI, there shall be no fee access increase. Therefore, the fees will remain at the current level of $60 per area code, with a maximum fee of $16,482. The access fee for each area code during the second six months of an entity's annual subscription period remains at $30. Users will still be able to access the first five area codes free of charge, and organizations that are not required to comply with the Registry will still be able to access it if they choose to while remaining exempt from fees.
By direction of the Commission.
The Centers for Disease Control and Prevention (CDC) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The notice for the proposed information collection is published to obtain comments from the public and affected agencies.
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address any of the following: (a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (c) Enhance the quality, utility, and clarity of the information to be collected; (d) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639–7570 or send an email to
Foreign Quarantine Regulations (42 CFR part 71), (OMB Control No. 0920–0134, Expiration Date 9/30/2017)—Revision — National Center for Emerging and Zoonotic Infections Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
The purpose of this information collection proposal is to request a revision of a currently approved data collection “Foreign Quarantine Regulations” that expires September 30, 2017. This revision is an effort to provide greater clarity surrounding paperwork requirements and focuses exclusively on certain information collections within OMB Control No. 0920–0134 pertaining to importation of dogs into the United States. Specifically, CDC seeks to make the following changes:
• CDC is asking to correct a transcription error in the burden tables in section 12. Currently, the relevant IC reads: 71.51(b)(2) Dogs/cats: Certification of Confinement, Vaccination (CDC form 75.37). It should have been: 71.51(c)(2) Dogs: Certification of Confinement, Vaccination (CDC form 75.37).
• CDC is also proposing to replace the CDC form 75.37 NOTICE TO OWNERS AND IMPORTERS OF DOGS: Requirement for Dog Confinement with a new Application For Permission To Import A Dog Unimmunized Against Rabies, which, if the importer meets the criteria for importation, will be followed by a CDC-completed Permit to Conditionally Import a Dog Inadequately Immunized against Rabies—Single Entry.
• CDC is also requesting approval to change and split the current information collection (IC) “71.51(c)(2) Dogs/cats: Certification of Confinement, Vaccination (CDC form 75.37)” into two separate ICs.
• CDC will include one modified IC: “71.51(c)(2), (d) Application For Permission To Import A Dog Unimmunized Against Rabies”. This will include a reduced estimate of the numbers of these permits, formerly CDC form 75.37 NOTICE TO OWNERS AND IMPORTERS OF DOGS: Requirement for Dog Confinement, issued each year.
• CDC will include a separate IC pertaining to 71.51(c)(1), (d). The title for this IC is Valid Rabies Vaccination Certificate, which will include only the burden associated with rabies vaccination certificates.
• CDC is also including an information collection for 71.51(c)(i), (ii), and (iii) which provides exemption criteria for the importation of a dog without a rabies vaccination certificate.
CDC is not requesting changes to any of the other information collections included under OMB control number 0920–0134 Foreign Quarantine Regulations.
CDC is providing two estimates of the total annualized burden of this information collection request, because CDC needs the flexibility to use the PLF in a widespread manner during an outbreak of public health significance. The first total, 307,546 burden hours, is the total estimated burden to respondents per year with the use of the Passenger Locator Form used in an outbreak of public health significance. The second total, 82,613 burden hours, includes the more limited use of the PLF. It is more likely that the average annual burden for reporting and recordkeeping will be the second total.
Centers for Medicare & Medicaid Services.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by December 1, 2015.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
Reports Clearance Office at (410) 786–1326.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501–3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
1.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by November 2, 2015.
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions:
OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395–5806 or Email:
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' Web site address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786–1326.
Reports Clearance Office at (410) 786–1326.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501–3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the
1.
2.
Centers for Medicare & Medicaid Services (CMS), HHS.
Notice.
This notice announces the next meeting date of the Advisory Panel on Clinical Diagnostic Laboratory Tests (the Panel) on Monday, October 19, 2015. The purpose of the Panel is to advise the Secretary of the Department of Health and Human Services (DHHS) (the Secretary) and the Administrator of the Centers for Medicare & Medicaid Services (CMS) (the Administrator) on issues related to clinical diagnostic laboratory tests.
The public may attend the meeting in-person, view via webcast, or listen via teleconference. Beginning Friday, October 2, 2015, and ending Tuesday, October 13, 2015 at 5:00 p.m. EDT, registration to attend the meeting in-person may be completed on-line at
• Name.
• Company name.
• Address.
• Email addresses.
Participants who do not plan to attend the meeting in-person on October 19, 2015 should not register. No registration is required for participants who plan to view the meeting via webcast or listen via teleconference.
We are interested in submitted comments or in person presentations at the meeting concerning the issues described in the
The meetings will be held in the Auditorium, CMS Central Office, 7500 Security Boulevard, Woodlawn, Maryland 21244–1850. Alternately, the public may either view the meetings via a webcast or listen by teleconference. During the scheduled meeting, webcasting is accessible online at
This meeting is open to the public. The on-site check-in for visitors will be held from 8:30 a.m. to 9:00 a.m. on Monday, October 19, 2015. Following the opening remarks, the Panel will address any issues relating to the CY 2016 CLFS preliminary determinations of new and reconsidered test codes, as well as provide input on other CY 2016 CLFS issues that are designated in the Panel's charter. The Panel will hear oral presentations from the public for no more than 1 hour during each of two sessions. During session one, registered persons from the public may present recommendations on preliminary determinations of new and reconsidered codes for the CY 2016 CLFS. During session two, registered persons from the public may present recommendations on CLFS issues that are designated in the Panel's charter and outlined in the Agenda.
Glenn C. McGuirk, Designated Federal Official (DFO), Center for Medicare, Division of Ambulatory Services, CMS, 7500 Security Boulevard, Mail Stop C4–01–26, Baltimore, MD 21244, 410–786–5723, email
The Advisory Panel on Clinical Diagnostic Laboratory Tests is authorized by section 1834A(f)(1) of the Social Security Act (the Act) (42 U.S.C. 1395m–1), as established by section 216 of the Protecting Access to Medicare Act of 2014 (PAMA) (Pub. L. 113–93, enacted April 1, 2014). The Panel is subject to the Federal Advisory Committee Act (FACA), as amended (5 U.S.C. Appendix 2), which sets forth standards for the formation and use of advisory panels.
Section 1834A(f)(1) of the Act directs the Secretary of the Department of Health and Human Services (Secretary) to consult with an expert outside advisory panel, established by the Secretary, composed of an appropriate selection of individuals with expertise in issues related to clinical diagnostic laboratory tests. Such individuals may include molecular pathologists, clinical laboratory researchers, and individuals with expertise in laboratory science or health economics.
The Panel will provide input and recommendations to the Secretary and the Administrator of the Centers for Medicare & Medicaid Services (CMS), on the following:
• The establishment of payment rates under section 1834A of the Act for new clinical diagnostic laboratory tests, including whether to use crosswalking or gapfilling processes to determine payment for a specific new test;
• The factors used in determining coverage and payment processes for new clinical diagnostic laboratory tests; and
• Other aspects of the new payment system under section 1834A of the Act.
A notice announcing the establishment of the Panel and soliciting nominations for members was published in the October 27, 2014
The Panel charter provides that panel meetings will be held up to four times annually. The Panel consists of 15 individuals and a Chair. The Panel Chair facilitates the meeting and the DFO or DFO's designee must be present at all meetings.
The Agenda for the October 19, 2015, meeting will provide for discussion and comment on the following topics as designated in the Panel's Charter:
• CY 2016 CLFS preliminary determinations of new and reconsidered test codes which were posted on September 25, 2015 on our Web site at
• Other CY 2016 CLFS issues designated in the Panel's charter and further described on our Agenda.
A detailed Agenda will be posted approximately 2 weeks before the meeting, on the CMS Web site at
The Panel's meeting on October 19, 2015, is open to the public; however,
Persons wishing to attend this meeting, which is located on federal property, must register by following the instructions in the “Meeting Registration” section of this notice. A confirmation email will be sent to the registrants shortly after completing the registration process.
The following are the security, building, and parking guidelines:
• Persons attending the meeting, including presenters, must be pre-registered and on the attendance list by the prescribed date.
• Individuals who are not pre-registered in advance may not be permitted to enter the building and may be unable to attend the meeting.
• Attendees must present a government-issued photo identification to the Federal Protective Service or Guard Service personnel before entering the building. Without a current, valid photo ID, persons may not be permitted entry to the building.
• Security measures include inspection of vehicles, inside and out, at the entrance to the grounds.
• All persons entering the building must pass through a metal detector.
• All items brought into CMS including personal items, for example, laptops and cell phones are subject to physical inspection.
• The public may enter the building 30 to 45 minutes before the meeting convenes each day.
• All visitors must be escorted in areas other than the lower and first-floor levels in the Central Building.
• The main-entrance guards will issue parking permits and instructions upon arrival at the building.
Individuals requiring special accommodations must include the request for these services during registration.
The Panel's recommendations will be posted after the meeting on our Web site at
The Secretary's Charter for the Advisory Panel on Clinical Diagnostic Laboratory Tests is available on the CMS Web site at
This document does not impose information collection requirements, that is, reporting, recordkeeping or third-party disclosure requirements. Consequently, there is no need for review by the Office of Management and Budget under the authority of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or Agency) is announcing the availability of a draft guidance entitled “M4E(R2): The CTD—Efficacy” (M4E(R2)). The draft guidance was prepared under the auspices of the International Conference on Harmonisation of Technical Requirements for Registration of Pharmaceuticals for Human Use (ICH). In August 2001, FDA made available guidance on preparing the efficacy components of an application file in the common technical document (CTD) format (“M4E: The CTD—Efficacy” (M4E guidance)). This draft guidance revises the M4E guidance. The revised draft guidance standardizes the presentation of benefit-risk information in regulatory submissions, providing greater specificity on the format and structure of benefit-risk information. This revision is intended to facilitate communication among regulators and industry.
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 December 1, 2015.
Submit written requests for single copies of the draft guidance to the Division of Drug Information (HFD–240), Center for Drug Evaluation and Research (CDER), Food and Drug Administration, 10001 New Hampshire Ave., Hillandale Building, 4th Floor, Silver Spring, MD 20993–0002, or 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
In recent years, many important initiatives have been undertaken by regulatory authorities and industry associations to promote international harmonization of regulatory requirements. FDA has participated in many meetings designed to enhance harmonization and is committed to seeking scientifically based and harmonized technical procedures for pharmaceutical development. One of the goals of harmonization is to identify and reduce differences in technical requirements for drug development among regulatory Agencies.
ICH was organized to provide an opportunity for tripartite harmonization initiatives to be developed with input from both regulatory and industry representatives. FDA also seeks input from other interested stakeholders. ICH is concerned with harmonization of technical requirements for the registration of pharmaceutical products among three regions: Europe, Japan, and North America. The eight ICH sponsors are the European Commission; the European Federation of Pharmaceutical Industries Associations; the Japanese Ministry of Health, Labour, and Welfare; the Japanese Pharmaceutical Manufacturers Association; CDER and CBER, FDA; the Pharmaceutical Research and Manufacturers of America; Health Canada; and Swissmedic. The ICH Secretariat, which coordinates the preparation of documentation, is provided by the International Federation of Pharmaceutical Manufacturers Associations (IFPMA). The ICH Steering Committee includes representatives from each of the ICH sponsors and the IFPMA, as well as observers such as the World Health Organization. In August 2015, the ICH Steering Committee agreed that a draft guidance entitled “M4E(R2): The CTD—Efficacy” should be made available for public comment. The draft guidance is the product of the M4E(R2) Expert Working Group of the ICH. Comments about this draft will be considered by FDA and the Expert Working Group.
ICH M4E(R2) revises the M4E guidance (made available in August 2001), which covers the Clinical Overview and Clinical Summary of Module 2 of the CTD and the Clinical Study Reports of Module 5. The revised draft guidance provides more specific guidance regarding the format and structure of the benefit-risk assessment in section 2.5.6; it also revises other sections of the guidance for clarification, given the proposed revisions in section 2.5.6. In addition, the revised draft guidance changes the numbering and the section headings for consistency.
Regulatory authorities approve drugs that are demonstrated to be safe and effective for human use. The meaning of “safe” has historically been interpreted to mean that the benefits of the drug outweigh its risks. This benefit-risk assessment of pharmaceuticals is the fundamental basis of regulatory decision-making. In the last several years, providing greater structure for the benefit-risk assessment has been an important topic in drug regulation. The M4E guidance directs applicants to include their conclusions on benefits and risks in the Clinical Overview of Module 2 of the CTD under section 2.5.6. Although general guidance is provided in the M4E guidance regarding the expected content of section 2.5.6, no further structure is suggested to aid industry in developing the benefit-risk assessment. As a result, regulators observe a high degree of variability in the approaches taken by applicants in presenting this information. This variability may not facilitate efficient communication of industry views to regulators. Although regulators and industry have developed approaches for structured benefit-risk assessment and these approaches may take different forms, there is a common thread evident that can inform harmonization of the format and structure of benefit-risk
Recognizing that there are many reasonable approaches for conducting a benefit-risk assessment, M4E(R2) does not specify a particular approach to be used by industry. However, the document does offer specific guidance on the major elements that should be included in the benefit-risk assessment. Furthermore, consistent with the concept paper that laid the groundwork for the Expert Working Group, the revised draft guidance does not dictate an approach used by a regulator in conducting a benefit-risk assessment.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
Interested persons may submit either electronic comments regarding this document to
Persons with access to the Internet may obtain the document at
Food and Drug Administration, HHS.
Notice; request for comments.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on an assessment of the Prescription Drug User Fee Act (PDUFA) Workload Adjuster conducted by an independent consulting firm. This assessment was conducted to fulfill FDA performance commitments made as part of the fifth authorization of PDUFA in section XV, “Improving FDA Performance Management,” subsection B, which was reauthorized by the Food and Drug Administration Safety and Innovation Act of 2012 (FDASIA). Independent consulting firms conducted two assessments during PDUFA V. This is the second assessment to evaluate whether the adjustment reasonably represents actual changes in workload volume and complexity in the human drug review program and to present options to discontinue, retain, or modify any elements of the adjustment. After review of the report and receipt of public comment, FDA can adopt appropriate change to the workload adjustment methodology, if warranted.
Submit electronic or written comments by November 2, 2015.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION”. The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Alice Tsai, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 1149, Silver Spring, MD 20993–0002, 240–402–6069,
On July 9, 2012, the President signed into law FDASIA. This new law includes the reauthorization of PDUFA that provides FDA with the necessary resources to maintain a predictable and efficient review process for human drug and biologic products.
Title I of FDASIA is the fifth authorization of PDUFA and includes by reference the performance goals and procedures for PDUFA V transmitted by the Secretary of Health and Human Services to Congress in a commitment letter. FDA developed recommendations for PDUFA V in consultation with drug industry representatives, patient and consumer advocates, health care professionals, and other public stakeholders from July 2010 through May 2011. These recommendations included an FDA commitment to contract with an independent accounting or consulting firm to review the adequacy of the PDUFA adjustment for changes in workload (hereafter referred to as the workload adjuster).
The workload adjuster was introduced in PDUFA III to allow for FDA to augment the total user fee revenue amount each fiscal year (after adjusting for inflation) to account for changes in workload volume in the human drug application review process. Workload volume is measured by the changes in the number of new drug applications (NDAs) and biologics license applications (BLAs), active commercial investigational new drugs (INDs), efficacy supplements, and manufacturing supplements submitted to the human drug review program during the most recent 5-year period.
In PDUFA IV, the workload adjuster was expanded to account for the workload complexity (known as the adjustment for changes in review activities; hereafter referred to as the Complexity Factor) associated with the review of NDAs/BLAs and active commercial INDs. The NDA/BLA complexity is measured by changes in the number of labeling supplements, annual report reviews, and NDA/BLA meetings per NDA/BLA. IND complexity is measured by changes in the number of special protocol assessments and IND meetings per active commercial IND.
As part of the PDUFA IV recommendations, FDA committed to an evaluation of the adjustment for changes in review activities by an independent consulting firm. The study, conducted by Deloitte & Touche, LLP, in fiscal year (FY) 2009, found that the adjustment methodology used by FDA reasonably captures changes in the workload complexity for reviewing human drug applications under PDUFA IV. Although the FY 2009 evaluation concluded that the adjustment methodology was reasonable at that time, the complexity of new drug applications and FDA's regulatory responsibilities are constantly evolving. Moreover, the complexity component of the PDUFA IV workload adjuster was formulated before the enactment of the Food and Drug Administration Amendments Act of 2007 (FDAAA). Thus, the workload adjuster does not account for new and significant review activities required by FDAAA, such as risk evaluation and mitigation strategies, safety labeling changes, advisory committee meetings, and post-market safety requirements, among others.
Given the dynamic nature of drug products and FDA's regulatory responsibilities, FDA committed to periodic reassessments of the workload adjuster in PDUFA V to ensure that it is achieving its intended role of adjusting the user fee revenues to reflect actual changes in FDA s workload volume and complexity.
The PDUFA V commitment letter instructs FDA to contract with an independent accounting or consulting firm to conduct two assessments of the workload adjuster. The first assessment (to examine the performance of the workload adjuster since FY 2009) conducted by IBM in FY 2013, found that the workload adjuster does reasonably represent changes in workload volume associated with the human drug review process. However, the report concluded that methodology was flawed with respect to measuring workload complexity, because it does not represent total amount of work per submission. The report recommended that FDA consider removing the Complexity Factor. In addition, the report found that the workload adjuster's use of 5-year rolling averages to measure changes in workload against the base years was not as sensitive to recent trends as 3-year rolling averages would be. The report is available at
The second assessment (to address the recommendations from the first evaluation and assess the continued performance of the workload adjuster) was just completed. The independent consulting firm is required to submit a report based on its assessment. The report will evaluate whether the workload adjuster reasonably represents actual changes in workload volume and will present options to discontinue, retain, or modify any elements of the adjustment. After review of the report and receipt of public comment, FDA, if warranted, may adopt appropriate changes to the methodology.
FDA is seeking public comment now on the second assessment of the PDUFA Workload Adjuster, available at
Food and Drug Administration, HHS.
Request for comments; reopening of the comment period.
The Food and Drug Administration (FDA) is reopening the
Submit either electronic or written comments by November 2, 2015.
You may submit comments as follows:
Submit electronic comments in the following way:
• Federal eRulemaking Portal:
• If you want to submit a comment with confidential information that you do not wish to be made available to the public submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
• Mail/Hand delivery/Courier (for written/paper submissions): Division of Dockets Management (HFA–305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION”. The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Submit written requests for single copies of the guidance to the Policy and Regulations Staff (HFV–6), Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855. Send one self-addressed adhesive label to assist that office in processing your requests. See the
John Harshman, CVM, Food and Drug Administration, HFV–170, MPN2, 7500 Standish Place, Rockville, MD 20855, 240–402–0845.
In the
Following publication of the June 10, 2015, notice reopening the comment period for 60 days, FDA received a request to allow interested persons an additional 30 days to comment. FDA has considered the request and is reopening the comment period for 30 days, until November 2, 2015.
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
Comments on this Information Collection Request must be received no later than December 1, 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.
The estimated annual response burden to trainers, as well as attendees of training programs as follows:
The estimated annual burden to AETCs is as follows:
The total burden hours are 19,252.
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.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Public Law 92–463), notice is hereby given of the following meeting:
1. (Audio Portion) Calling the Toll Free Phone Number 1–800–369–3340 and providing the Public Participant Pass Code 4318075, and
2. (Visual Portion) Connecting to the Advisory Committee Adobe Connect Pro Meeting using the following URL:
(Copy and paste the above link into your browser if it does not work directly). Participants should call and connect 15 minutes prior to the meeting in order for logistics to be set up. Call (301) 443–9684 or send an email to
Shelley B. Gordon, Senior Public Health Analyst, Health Resources and Services Administration, HIV/AIDS Bureau, Division of Policy and Data, 5600 Fishers Lane, Room 7C–26, Rockville, Maryland 20857, telephone (301) 443–9684, fax (301) 443–3343, or email
National Institutes of Health, HHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209 and 37 CFR 404.7, that the National Institutes of Health, Department of Health and Human Services, is contemplating the grant of an exclusive patent license to Intima Biosciences, Inc., which is located in New York City, New York to practice the inventions embodied in the following patent applications and applications claiming priority to these applications:
1. U.S. Provisional Patent Application No. 61/771,251 filed March 1, 2013 entitled “Methods of Producing Enriched Populations of Tumor Reactive T Cells from Peripheral Blood” (HHS Ref No. E–085–2013/0–US–01);
2. PCT Application No. PCT/US2013/038813 filed April 30, 2013 entitled “Methods of Producing Enriched Populations of Tumor Reactive T Cells from Peripheral Blood” (HHS Ref No. E–085–2013/0–PCT–02) and all resulting national stage filings; and
3. PCT Application No. PCT/US2014/058796 filed October 2, 2014 entitled “Methods of Isolating T Cell Receptors Having Antigenic Specificity for a Cancer-Specific Mutation” (HHS Ref No. E–233–2014/0–PCT–01);
The patent rights in these inventions have been assigned to the United States of America. The prospective exclusive license territory may be worldwide and the field of use may be limited to the use of the Licensed Patent Rights with the Licensee's non-viral clustered regularly interspaced short palindromic repeats (CRISPR)/cellular apoptosis susceptibility (Cas) systems and proprietary non-viral constructs for the insertion of genes encoding T-Cell Receptors (TCR) against mutated antigens into peripheral blood lymphocytes for the treatment and prophylaxis of patients with metastatic cancer.
Only written comments and/or applications for a license which are received by the NIH Office of Technology Transfer on or before November 2, 2015 will be considered.
Requests for copies of the patent application, inquiries, comments, and other materials relating to the contemplated exclusive license should be directed to: Sabarni K. Chatterjee, Ph.D., M.B.A., Senior Licensing and Patenting Manager, NCI Technology Transfer Center, 9609 Medical Center Drive, RM 1E530 MSC 9702, Bethesda, MD 20892–9702 (for business mail), Rockville, MD 20850–9702; Telephone: (240) 276–5530; Facsimile: (240) 276–5504; Email:
The first technology describes a process to select highly tumor-reactive T cells from a patient's peripheral blood sample based on the expression of two specific T cell surface markers: Programmed cell death protein 1 (PD–1; CD279) and/or T cell Ig- and mucin-domain-containing molecule-3 (TIM–3). After this enriched population of tumor-reactive T cells is selected and expanded to large quantities, it gets re-infused into the patient via an ACT regimen. The enrichment of tumor-reactive cells from a patient's peripheral blood based on these markers provides a simple alternative to the current strategies based on isolation tumor-reactive cells from the tumor, as it reduces the cost and complications of tumor of resection, as well as provides a T cell product for patients without resectable lesions. The second technology describes a method to identify and generate TCR engineered T cells for personalized cancer therapy. Using tandem mini-gene constructs encoding all of the patient's tumor mutations, T cells that were reactive with the unique mutated antigens expressed only in the patient's tumors
The prospective exclusive license may be granted unless within thirty (30) days from the date of this published notice, the NIH receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Complete applications for a license in the field of use filed in response to this notice will be treated as objections to the grant of the contemplated exclusive license. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
National Institutes of Health, HHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209 and 37 CFR part 404, that the National Institutes of Health (NIH), Department of Health and Human Services, is contemplating the grant of a start-up exclusive license to VuEssence, which is located in Florida, to practice the inventions embodied in the following patents:
The patent rights in these inventions have been assigned to the United States of America. The prospective start-up exclusive license territory may be worldwide and the field of use may be limited to in vitro class III diagnostic device for the detection and assessment of ischemic stroke in humans.
Only written comments and/or applications for a license which are received by the NIH Office of Technology Transfer on or before October 19, 2015 will be considered.
Requests for copies of the patent application, inquiries, comments, and other materials relating to the contemplated start-up exclusive evaluation option license should be directed to: Susan Ano, Ph.D., NINDS Technology Transfer and Development Branch, 31 Center Drive, Suite 8A52, MS2540, Bethesda, MD 20892; Telephone: (301) 435–5515; Email:
The present technology claims methods of determining whether a subject had an ischemic stroke by detecting expression of twenty biomarkers in the blood, comparing expression levels to an individual who has not had a stroke, and determining whether there was at least a four-fold increase in the biomarker expression levels. Each of the biomarkers is detectable by a specified set of sequences.
The patent also claims a method of administering an appropriate treatment regimen for a subject who had an ischemic stroke.
The prospective start-up exclusive license may be granted unless within fifteen (15) days from the date of this published notice, the NIH receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR part 404.
Complete applications for a license in the field of use filed in response to this notice will be treated as objections to the grant of the contemplated start-up exclusive license. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
National Institutes of Health, HHS.
Notice.
The inventions listed below are owned by an agency of the U.S. Government and are available for licensing in the U.S. in accordance with 35 U.S.C. 209 and 37 CFR part 404 to achieve expeditious commercialization of results of federally-funded research and development. Foreign patent applications are filed on selected inventions to extend market coverage for companies and may also be available for licensing.
Licensing information and copies of the U.S. patent applications listed below may be obtained by writing to the
Technology descriptions follow.
Publications:
1. Cai L, et al. Synthesis and structure-affinity relationships of new 4-(6-iodo-H-imidazo[1,2-a]pyridin-2-yl)-N-dimethylbenzeneamine derivatives as ligands for human beta-amyloid plaques. J Med Chem. 2007 Sep 20;50(19):4746–58. [PMID 17722900]
2. Cai L, et al. Synthesis and evaluation of N-methyl and S-methyl 11C-labeled 6-methylthio-2-(4′-N,N-dimethylamino)phenylimidazo[1,2-a]pyridines as radioligands for imaging beta-amyloid plaques in Alzheimer's disease. J Med Chem. 2008 Jan 10;51(1):148–58. [PMID 18078311]
Description of Technology: The available system is the Human Research Information System (HuRIS), an integrated advanced clinical/research informatics series of systems—that is, an intelligent electronic environment for the collection, organization and retrieval of information in clinical/scientific decision support—which enables data and resource sharing in real time among authorized users at our clinics. (Individual systems or subsystems may be licensable.) Users on both the clinical side (
Potential Commercial Applications:
Competitive Advantages:
1. Massoud Vahabzadeh, Jia-Ling Lin, Mustapha Mezghanni, Carlo Contoreggi, and Michelle Leff, “An EHR-Based Multi-Site Recruiting System for Clinical Trials,” Proc. 20th IEEE International Symposium on Computer-Based Medical Systems, June 2007, pages 331–6.
2. Massoud Vahabzadeh, Jia-Ling Lin, Mustapha Mezghanni, David Epstein, and Kenzie Preston, “Automation in an Addiction Treatment Research Clinic:
Current therapy, which primarily consists of dietary modification, fails to prevent long-term complications in many patients, including growth failure, gout, pulmonary hypertension, renal dysfunction, osteoporosis, and hepatocellular adenomas (HCA). Gene therapy-based techniques, which directly address the underlying genetic deficiency driving the disorder, offer the prospect of long-term remission in patients with GSD-Ia.
• Protein coding sequence modified for enhanced enzymatic activity.
• Codon optimized for increased enzyme expression in target organs.
1. Lee YM et al. Prevention of hepatocellular adenoma and correction of metabolic abnormalities in murine glycogen storage disease type Ia by gene therapy. Hepatology 2012 Nov;56(5):1719–29. [PMID 22422504].
2. Lee YM, et al. The upstream enhancer elements of the G6PC promoter are critical for optimal G6PC expression in murine glycogen storage disease type Ia. Mol Genet Metab. 2013 Nov;110(3):275–80. [PMID 23856420].
Collaborative Research Opportunity: The National Institute of Child Health and Human Development is seeking statements of capability or interest from parties interested in collaborative research to further develop, evaluate, or commercialize gene therapy vectors for the treatment of glycogen storage disease type Ia. For collaboration opportunities, please contact Joseph M. Conrad, III, Ph.D., J.D. at
National Institutes of Health, HHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209 and 37 CFR part 404, that the National Institutes of Health (NIH), Department of Health and Human Services, is contemplating the grant of an exclusive license to Carl Zeiss Microscopy GmbH, which is located in Germany, to practice the inventions embodied in the following patent applications:
The patent rights in these inventions have been assigned to the United States of America.
The prospective start-up exclusive license territory may be worldwide and the field of use may be limited to microtomes for scanning electron microscopes (SEMs) or light microscopes for life science applications.
Only written comments and/or applications for a license which are received by the NIH Office of Technology Transfer on or before November 2, 2015 will be considered.
Requests for copies of the patent application, inquiries, comments, and other materials relating to the contemplated exclusive license should be directed to: Susan Ano, Ph.D., NINDS Technology Transfer and Development Branch, 31 Center Drive, Suite 8A52, MS2540, Bethesda, MD 20892; Telephone: (301) 435–5515; Email:
A microtome device is used in a variety of microcopy techniques to remove very thin (
The prospective start-up exclusive license may be granted unless within thirty (30) days from the date of this published notice, the NIH receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR part 404.
Complete applications for a license in the field of use filed in response to this notice will be treated as objections to the grant of the contemplated start-up exclusive license. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
National Institutes of Health, HHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209 and 37 CFR part 404.7, that the National Institutes of Health, Department of Health and Human Services, is contemplating the grant of an start-up exclusive commercial license to Immunova Therapeutics, Inc., which is located in Houston, Texas, to practice the inventions embodied in the following patent applications and applications claiming priority to these applications:
The patent rights in these inventions have been assigned to the Government of the United States of America. The prospective start-up exclusive commercial license territory may be worldwide and the field of use may be limited to the use of the Licensed Patent Rights to develop, manufacture, distribute, sell and use NY–ESO–1 based vaccines and cell therapy products for the treatment of NY–ESO–1-positive cancers.
Only written comments and/or applications for a license which are received by the NIH Office of Technology Transfer on or before October 19, 2015 will be considered.
Requests for copies of the patent applications, inquiries, comments, and other materials relating to the contemplated exclusive evaluation option license should be directed to: Sabarni K. Chatterjee, Ph.D., M.B.A., Senior Licensing and Patenting Manager, NCI Technology Transfer Center, 9609 Medical Center Drive, RM 1E530 MSC 9702, Bethesda, MD 20892–9702 (for business mail), Rockville, MD 20850–9702; Telephone: (240) 276–5530; Facsimile: (240) 276–5504; Email:
NY–ESO–1 is a known tumor antigen which is expressed on a broad range of tumor types, including melanoma, breast, bladder, ovarian, prostate, head and neck cancers, neuroblastoma, and small cell lung cancer. The above-referenced inventions embody the identification of a number of novel immunogenic peptide epitopes, and analogs thereof, which are derived from the NY–ESO–1 tumor antigen. Specifically, this technology describes novel MHC Class II restricted epitopes of NY–ESO–1 which are recognized by CD4+ T cells. It also embodies the identification of two additional immunogenic peptide epitopes of NY–ESO–1. The latter two epitopes are presented by HLA–DP4, a prevalent MHC Class II allele present in 43–70% of Caucasians. The inventors also determined that the DP allele is highly associated with the NY–ESO–1 antibody production. In addition, one of these epitopes has dual HLA A2 and DP4 specificity, thereby it has the potential to generate both CD4+ and CD8+ tumor specific T cells. These epitopes may be of great value as prophylactic and/or therapeutic cancer vaccines or cell therapy products for use against a number of common cancers.
The prospective start-up exclusive commercial license is being considered under the small business initiative launched on October 1, 2011 and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR part 404.7. The prospective start-up exclusive commercial license may be granted unless within fifteen (15) days from the date of this published notice, the NIH receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR part 404.7.
Any additional, properly filed, and complete applications for a license in the field of use filed in response to this notice will be treated as objections to the grant of the contemplated exclusive commercial license. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
Public Health Service, National Institutes of Health, HHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209 and 37 CFR part 404, that the Public Health Service, Department of Health and Human Services, is contemplating the grant of an exclusive license to Kanomax Japan, Inc. having a principal place of business in Osaka, Japan, to practice the inventions embodied in U.S. Provisional Patent Application No. 62/026,559, filed on 18 July 2014, entitled “Aerosol Particle Growth Systems for Personal Sampling Applications Using Polymer Electrolyte Membranes” [HHS Reference No. E–026–2014/0–US–01]. The patent rights in these inventions have been assigned to the United States of America. The territory of the prospective exclusive patent license may be worldwide, and the field of use may be limited to “Analytical instruments comprising condensation particle counters (CPCs) for the sampling, detection, counting and analysis of ultrafine and nano-sized aerosol particles.”
Only written comments and/or applications for a license that are received by the NIH Office of Technology Transfer on or before November 2, 2015 will be considered.
Requests for a copy of the patent application, inquiries, comments and other materials relating to the contemplated license should be directed to: Tara L. Kirby, Ph.D., Chief, CDC Unit, Office of Technology Transfer, National Institutes of Health, 6011 Executive Boulevard, Suite 325, Rockville, MD 20852–3804; Telephone: (301) 435–4426; Facsimile: (301) 402–0220; Email:
Hazardous airborne particles pose a risk for health and safety in a variety of environments and thus detection of these small particles is essential. Current particle magnification systems are bulky and require a lot of power for operation, making them unsuitable to easily detect and analyze small particles in mobile and personal settings.
The CDC has developed space-saving miniature instrumentation and methods for the direct sampling and analysis of small particles (diameter <300–400 nm). The systems can effectively sample air at a rate of a few liters per minute and concentrate the particulate matter into microliter or milliliter liquid samples. The novel system uses proton exchange membranes to grow small particles for optical detection using standard methods. Further, these methods allow the system to separate condensation and aerosol flow to enhance user mobility. Moreover, the described methods use inexpensive materials and require low power for operation.
The prospective exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR part 404. The prospective exclusive license may be granted unless, within thirty (30) days from the date of this published notice, the NIH Office of Technology Transfer receives written evidence and argument that establishes that the grant of the contemplated license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR part 404.
Properly filed competing applications for a license in the prospective field of use that are filed in response to this notice will be treated as objections to the contemplated license. Comments and objections submitted in response to this notice will not be made available for public inspection, and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
National Institutes of Health, HHS.
Notice.
This is notice, in accordance with 35 U.S.C. 209 and 37 CFR 404.7, that the National Institutes of Health, Department of Health and Human Services, is contemplating the grant of an exclusive patent license to practice the inventions embodied in the following U.S. Patents and Patent Applications to PDS Biotechnology Corporation (“PDS”) located in New Brunswick, New Jersey, USA:
The patent rights in these inventions have been assigned to the government of the United States of America.
The prospective exclusive license territory may be worldwide and the
Only written comments and/or applications for a license which are received by the NIH Office of Technology Transfer on or before November 2, 2015 will be considered.
Requests for copies of the patent application, inquiries, and comments relating to the contemplated exclusive license should be directed to: Sabarni K. Chatterjee, Ph.D., M.B.A. Senior Licensing and Patenting Manager, NCI Technology Transfer Center, 9609 Medical Center Drive, RM 1E530 MSC 9702, Bethesda, MD 20892–9702 (for business mail), Rockville, MD 20850–9702; Telephone: (240) 276–5530; Facsimile: (240) 276–5504; Email:
This invention concerns the identification of immunogenic peptides within TARP, and their use to create an anti-cancer immune response in patients. By introducing these peptides into a patient, an immune response against these cancer cells can be initiated by the peptides, resulting in treatment of the cancer. A phase I clinical trial in stage D0 prostate cancer patients is nearing completion. Initial results indicate a statistically significant decrease in the slope of PSA for 48 weeks after vaccination.
The technology has the potential of being developed into a vaccine for various cancer indications or for the treatment of any cancer associated with increased or preferential expression of TARP.
The prospective exclusive license will be royalty bearing and will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7. The prospective exclusive license may be granted unless within thirty (30) days from the date of this published notice, the NIH receives written evidence and argument that establishes that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Complete applications for a license in the field of use filed in response to this notice will be treated as objections to the grant of the contemplated exclusive license. Comments and objections submitted to this notice will not be made available for public inspection and, to the extent permitted by law, will not be released under the Freedom of Information Act, 5 U.S.C. 552.
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.
Coast Guard, Department of Homeland Security.
Notice of Federal Advisory Committee meeting.
The Towing Safety Advisory Committee will meet in Washington, DC, to review and discuss recommendations from its subcommittees and to receive briefs listed in the agenda under
The Towing Safety Advisory Committee Subcommittees will meet on Thursday, October 22, 2015, from 8:30 a.m. to 5 p.m. The full Towing Safety Advisory Committee will meet on Friday, October 23, 2015, from 8 a.m. to 5:30 p.m. These meetings may close early if the Committee has completed its business.
All meetings will be held at the Department of Transportation Headquarters Media Center, 1200 New Jersey Avenue SE., Washington, DC 20590. The Telephone Number for the DOT HQ Media Center is (502) 992–5326 and the Fax is (502) 589–4905.
You must present a form of government issued identification to gain entrance to the Department of Transportation Headquarters. We recommend you arrive at least 30 minutes before the scheduled start time.
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact the individuals listed in the
To facilitate public participation, we are inviting public comment on the issues to be considered by the Committee as listed in the “Agenda” section below. If you want the Committee members to be able to review your comments before the meeting, submit them no later than October 15, 2015 and they must be identified by Docket No. USCG–2014–1053. Written comments may be submitted using the Federal eRulemaking Portal at
Instructions: All submissions received must include the words “Department of Homeland Security” and the docket number, “USCG–2014–1053.” All comments received will be posted without alteration at
Docket: For access to the docket to read documents or comments related to this notice, go to
Mr. William J. Abernathy, Alternate Designated Federal Officer for the Towing Safety Advisory Committee; Commandant (CG–OES–2), U.S. Coast Guard, 2703 Martin Luther King Jr. Avenue SE., Stop 7509, Washington, DC 20593–7509; telephone 202–372–1363, fax 202–372–8382; or email
Notice of this meeting is given under the
The subcommittees will meet on October 22, 2015, from 8:30 a.m. to 5 p.m., to work on their specific task assignments:
(1) Recommendations for the Maintenance, Repair, and Utilization of Towing Equipment, Lines, and Couplings.
(2) Recommendations to Establish Criteria for Identification of Air Draft for Towing Vessels and Tows.
(3) Recommendations concerning the MODU KULLUK Report of Investigation.
(4) Recommendations regarding the automation equipment, testing, and trial periods to be considered by Officers-in-Charge, Marine Inspection for a reduction in engine room personnel on towing vessels.
On October 23, 2015, from 8 a.m. to 5:30 p.m., the Towing Safety Advisory Committee will meet to discuss the progress of its subcommittees and expects to receive and consider the draft final reports from the subcommittees on the MODU KULLUK and Towing Gear. The Committee will also receive new tasking requesting recommendations regarding Articulated Tug and Barge operations and manning, and use of Electronic Charting on Towing Vessels. The Committee will also receive an update on a tasking request to review and provide recommendations regarding engine room operations on towing vessels equipped with systems automation in order to determine manning levels.
There will be a comment period for Towing Safety Advisory Committee members and a comment period for the public after each report presentation, but before each is voted on by the Committee. The Committee will review the information presented on each issue, deliberate on any recommendations presented in the Subcommittees' reports, and formulate recommendations for the Department's consideration.
A copy of each available draft report and presentation as well as the meeting agenda will be available by October 15, 2015, at:
An opportunity for oral comments by the public will be provided during the meeting on October 23, 2015. Speakers are requested to limit their comments to 3 minutes. Please note the public oral comment period may end before 5:30 p.m., if the Committee has finished its
Minutes from the meeting will be available for public review and copying within 90 days following the close of the meeting and can be accessed from the Coast Guard Homeport Web site
Coast Guard, DHS.
Sixty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995, the U.S. Coast Guard intends to submit an Information Collection Request (ICRs) to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting approval of an extension of a currently approved collection: 1625–0071, Boat Owners Report—Possible Safety Defect. Our ICR describes the information we seek to collect from the public. Before submitting this ICR to OIRA, the Coast Guard is inviting comments as described below.
Comments must reach the Coast Guard on or before December 1, 2015.
You may submit comments identified by Coast Guard docket number [USCG–2015–0635] to the Docket Management Facility (DMF) at the U.S. Department of Transportation (DOT). To avoid duplicate submissions, please use only one of the following means:
(1) Online:
(2) Mail: DMF (M–30), DOT, West Building Ground Floor, Room W12–140, 1200 New Jersey Avenue SE., Washington, DC 20590–0001.
(3) Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The telephone number is 202–366–9329.
(4) Fax: 202–493–2251. To ensure your comments are received in a timely manner, mark the fax, to attention Desk Officer for the Coast Guard.
The DMF maintains the public docket for this Notice. Comments and material received from the public, as well as documents mentioned in this Notice as being available in the docket, will become part of the docket and will be available for inspection or copying at room W12–140 on the West Building Ground Floor, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find the docket on the Internet at
Copies of the ICR(s) are available through the docket on the Internet at
Mr. Anthony Smith, Office of Information Management, telephone 202–475–3532, or fax 202–372–8405, for questions on these documents. Contact Ms. Cheryl Collins, Program Manager, Docket Operations, 202–366–9826, for questions on the docket.
This Notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. chapter 35, as amended. An ICR is an application to OIRA seeking the approval, extension, or renewal of a Coast Guard collection of information (Collection). The ICR contains information describing the Collection's purpose, the Collection's likely burden on the affected public, an explanation of the necessity of the Collection, and other important information describing the Collection. There is one ICR for each Collection.
The Coast Guard invites comments on whether these ICRs should be granted based on the Collections being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) the practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. In response to your comments, we may revise these ICRs or decide not to seek approval of revisions of the Collection. We will consider all comments and material received during the comment period.
We encourage you to respond to this request by submitting comments and related materials. Comments must contain the OMB Control Number of the ICR and the docket number of this request, [USCG–2015–0635], and must be received by December 1, 2015. We will post all comments received, without change, to
If you submit a comment, please include the docket number [USCG–2015–0635], indicate the specific section of the document to which each comment applies, providing a reason for each comment. You may submit your comments and material online (via
You may submit your comments and material by electronic means, mail, fax, or delivery to the DMF at the address under
Anyone can search the electronic form of comments received in dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act statement regarding Coast Guard public dockets in the January 17, 2008, issue of the
1.
The Paperwork Reduction Act of 1995; 44 U.S.C. chapter 35, as amended.
Coast Guard, DHS.
Sixty-day notice requesting comments.
In compliance with the Paperwork Reduction Act of 1995, the U.S. Coast Guard intends to submit an Information Collection Request (ICRs) to the Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), requesting approval of a revision of a currently approved collection: 1625–0047, Plan Approval and Records for Vital System Automation. Our ICR describes the information we seek to collect from the public. Before submitting this ICR to OIRA, the Coast Guard is inviting comments as described below.
Comments must reach the Coast Guard on or before December 1, 2015.
You may submit comments identified by Coast Guard docket number [USCG–2015–0748] to the Docket Management Facility (DMF) at the U.S. Department of Transportation (DOT). To avoid duplicate submissions, please use only one of the following means:
(1)
(2)
(3)
(4)
The DMF maintains the public docket for this Notice. Comments and material received from the public, as well as documents mentioned in this Notice as being available in the docket, will become part of the docket and will be available for inspection or copying at room W12–140 on the West Building Ground Floor, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. You may also find the docket on the Internet at
Copies of the ICR(s) are available through the docket on the Internet at
Contact Mr. Anthony Smith, Office of Information Management, telephone 202–475–3532, or fax 202–372–8405, for questions on these documents. Contact Ms. Cheryl Collins, Program Manager, Docket Operations, 202–366–9826, for questions on the docket.
This Notice relies on the authority of the Paperwork Reduction Act of 1995; 44 U.S.C. Chapter 35, as amended. An ICR is an application to OIRA seeking the approval, extension, or renewal of a Coast Guard collection of information (Collection). The ICR contains information describing the Collection's purpose, the Collection's likely burden on the affected public, an explanation of the necessity of the Collection, and other important information describing the Collection. There is one ICR for each Collection.
The Coast Guard invites comments on whether these ICRs should be granted based on the Collections being necessary for the proper performance of Departmental functions. In particular, the Coast Guard would appreciate comments addressing: (1) The practical utility of the Collection; (2) the accuracy of the estimated burden of the Collection; (3) ways to enhance the quality, utility, and clarity of information subject to the Collection; and (4) ways to minimize the burden of the Collection on respondents, including the use of automated collection techniques or other forms of information technology. In response to your comments, we may revise these ICRs or decide not to seek approval of revisions of the Collection. We will consider all comments and material received during the comment period.
We encourage you to respond to this request by submitting comments and related materials. Comments must contain the OMB Control Number of the
If you submit a comment, please include the docket number [USCG–2015–0748], indicate the specific section of the document to which each comment applies, providing a reason for each comment. You may submit your comments and material online (via
You may submit your comments and material by electronic means, mail, fax, or delivery to the DMF at the address under
Anyone can search the electronic form of comments received in dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act statement regarding Coast Guard public dockets in the January 17, 2008, issue of the
1.
Department of Homeland Security.
Committee Management; Notice of Federal Advisory Committee Meeting.
The Homeland Security Academic Advisory Council will meet on October 21, 2015 in Washington, DC. The meeting will be open to the public.
The Homeland Security Academic Advisory Council will meet Wednesday, October 21, 2015, from 10:00 a.m. to 3:30 p.m. Please note that the meeting may close early if the Council has completed its business.
The meeting will be held at the U.S. Citizenship and Immigration Services (USCIS) Tomich Conference Center, 111 Massachusetts Ave NW., Washington, DC 20529. All visitors to the USCIS Tomich Conference Center must bring a Government-issued photo ID.
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, send an email to
To facilitate public participation, we are inviting public comment on the issues to be considered by the Council prior to the adoption of the recommendations as listed in the
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One thirty-minute public comment period will be held during the meeting on October 21, 2015 after the conclusion of the presentation of draft recommendations, but before the
Lindsay Burton, Office of Academic Engagement/Mailstop 0440; Department of Homeland Security; 245 Murray Lane SW., Washington, DC 20528–0440, email:
Notice of this meeting is given under the
The meeting materials will be posted to the Council Web site at:
Office of the Secretary, DHS.
Notice of
SUMARY: This notice announces the appointment of the members of the Senior Executive Service Performance Review Boards for the Department of Homeland Security. The purpose of the Performance Review Board is to view and make recommendations concerning proposed performance appraisals, ratings, bonuses, pay adjustments, and other appropriate personnel actions for incumbents of Senior Executive Service, Senior Level and Senior Professional positions of the Department.
This Notice is effective October 2, 2015.
Elizabeth Haefeli, Office of the Chief Human Capital Officer, telephone (202) 357–8164.
Each federal agency is required to establish one or more performance review boards (PRB) to make recommendations, as necessary, in regard to the performance of senior executives within the agency. 5 U.S.C. 4314(c). This notice announces the appointment of the members of the PRB for the Department of Homeland Security (DHS). The purpose of the PRB is to review and make recommendations concerning proposed performance appraisals, ratings, bonuses, pay adjustments, and other appropriate personnel actions for incumbents of SES positions within DHS.
The Board shall consist of at least three members. In the case of an appraisal of a career appointee, more than half of the members shall consist of career appointees. Composition of the specific PRBs will be determined on an ad hoc basis from among the individuals listed below:
This notice does not constitute a significant regulatory action under section 3(f) of Executive Order 12866. Therefore, DHS has not submitted this notice to the Office of Management and Budget. Further, because this notice is a matter of agency organization, procedure and practice, DHS is not required to follow the rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553).
60-day notice.
The Department of Homeland Security (DHS), U.S. Citizenship and Immigration Services (USCIS), invites the general public and other Federal agencies to comment upon this proposed revision of a currently approved collection of information. In accordance with the Paperwork Reduction Act (PRA) of 1995, the information collection notice is published in the
Comments are encouraged and will be accepted for 60 days until December 1, 2015.
All submissions received must include the OMB Control Number 1615–NEW in the subject box, the agency name and Docket ID USCIS–2015–0004. To avoid duplicate submissions, please use only one of the following methods to submit comments:
(1)
(2)
(3)
Regardless of the method used for submitting comments or material, all submissions will be posted, without change, to the Federal eRulemaking Portal at
The address listed in this notice should only be used to submit comments concerning this information collection. Please do not submit requests for individual case status inquiries to this address. If you are seeking information about the status of your individual case, please check “My Case Status” online at:
Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including
(2) Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection instrument with instructions, or additional information, please visit the Federal eRulemaking Portal site at:
Office of the Assistant Secretary for Housing- Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410–5000; telephone 202–402–3400 (this is not a toll-free number) or email at
Danielle Garcia, Branch Chief, Subsidy Oversight Branch, Office of Asset Management and Portfolio Oversight, Office of Multifamily Housing Programs, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410;
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
Section 644 of the Housing and Community Development Act of 1992 (42 U.S.C. 13604) imposed on HUD the obligation to require housing providers participating in HUD's assisted housing programs to provide any individual or family applying for occupancy in HUD-assisted housing with the option to include in the application for occupancy the name, address, telephone number, and other relevant information of a family member, friend, or person associated with a social, health, advocacy, or similar organization. The objective of providing such information, if this information is provided, and if the applicant becomes a tenant, is to facilitate contact by the housing provider with the person or organization identified by the tenant, to assist in providing any the delivery of services or special care to the tenant and assist with resolving any tenancy issues arising during the tenancy of such tenant. This supplemental application information is to be maintained by the housing provider and maintained as confidential information.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of Community Planning and Development, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410–5000; telephone 202–402–3400 (this is not a toll-free number) or email at
Steven K. Washington, Director, Office of Policy Development and Coordination, CPD, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Steven K. Washington at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
Office of the Assistant Secretary for Housing-Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410–5000; telephone 202–402–3400 (this is not a toll-free number) or email at
Theodore K. Toon, Director, Office of Multifamily Production, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email
This notice informs the public that HUD is seeking approval from OMB for the information collection described in section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. chapter 35.
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 use to assist the homeless.
Juanita Perry, Department of Housing and Urban Development, 451 Seventh Street SW., Room 7266, 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 24 CFR part 581 and section 501 of the Stewart B. McKinney Homeless Assistance Act (42 U.S.C. 11411), as amended, HUD is publishing this Notice to identify Federal buildings and other real property that HUD has reviewed for suitability for use to assist the homeless. The properties were reviewed using information provided to HUD by Federal landholding agencies regarding unutilized and underutilized buildings and real property controlled by such agencies or by GSA regarding its inventory of excess or surplus Federal property. This Notice is also published in order to comply with the December 12, 1988 Court Order in
Properties reviewed are listed in this Notice according to the following categories: Suitable/available, suitable/unavailable, and suitable/to be excess, and unsuitable. The properties listed in the three suitable categories have been reviewed by the landholding agencies, and each agency has transmitted to HUD: (1) Its intention to make the property available for use to assist the homeless, (2) its intention to declare the property excess to the agency's needs, or (3) a statement of the reasons that the property cannot be declared excess or made available for use as facilities to assist the homeless.
Properties listed as suitable/available will be available exclusively for homeless use for a period of 60 days from the date of this Notice. Where property is described as for “off-site use only” recipients of the property will be required to relocate the building to their own site at their own expense. Homeless assistance providers interested in any such property should send a written expression of interest to HHS, addressed to: Ms. Theresa M. Ritta, Chief Real Property Branch, the Department of Health and Human Services, Room 5B–17, Parklawn Building, 5600 Fishers Lane, Rockville,
For properties listed as suitable/to be excess, that property may, if subsequently accepted as excess by GSA, be made available for use by the homeless in accordance with applicable law, subject to screening for other Federal use. At the appropriate time, HUD will publish the property in a Notice showing it as either suitable/available or suitable/unavailable.
For properties listed as suitable/unavailable, the landholding agency has decided that the property cannot be declared excess or made available for use to assist the homeless, and the property will not be available.
Properties listed as unsuitable will not be made available for any other purpose for 20 days from the date of this Notice. Homeless assistance providers interested in a review by HUD of the determination of unsuitability should call the toll free information line at 1–800–927–7588 for detailed instructions or write a letter to Ann Marie Oliva at the address listed at the beginning of this Notice. Included in the request for review should be the property address (including zip code), the date of publication in the
For more information regarding particular properties identified in this Notice (
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
In accordance with HUD regulations, this Notice announces the mortgage insurance premiums (MIPs) for Federal Housing Administration (FHA) Multifamily, Health Care Facilities, and Hospital mortgage insurance programs that have commitments to be issued or reissued in FY 2016. FY 2016 MIPs are the same as in FY 2015. This Notice does not apply to loans insured under the Risk Sharing programs of section 542(b) or 542(c) of the Housing and Community Development Act of 1992.
HUD's mortgage insurance regulations at 24 CFR 207.254 provide as follows:
Notice of future premium changes will be published in the
This notice announces that the FY 2016 MIPs are the same the FY 2015 MIPs, published in the
The Department will continue to suspend issuance and reissuance of commitments under two programs that have previously required positive credit subsidy: Section 221(d)(3) New Construction/Substantial Rehabilitation (NC/SR) for Nonprofit/Cooperative Mortgagors without LIHTC and Section 223(d) Operating Loss Loans for Apartments.
The MIPs to be in effect for FHA Firm Commitments issued or reissued in FY 2016 are shown in the chart below:
Office of the Assistant Secretary for Policy Development and Research, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410–5000; telephone 202–402–3400 (this is not a toll-free number) or email at
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
This notice informs the public that HUD is seeking approval from OMB for the information collection described in section A. The Department will submit the proposed information collection to OMB for review, as required by the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, as amended).
The Manufactured Housing Survey collects data on new manufactured homes that are sold or leased for residential use. The survey tracks a sample of manufactured homes (units) shipped to dealers and the sales price and characteristics of the sampled units. Beginning in fiscal year 2015, dealers are contacted once to obtain sales price and characteristics of the unit. If the unit has been placed by the time Census contacts the dealer, additional placement data are collected. Other selected housing characteristics collected include size, location, and titling. HUD uses the statistics to respond to a Congressional mandate in the Housing and Community Development Act of 1980, 42 U.S.C. 5424 note, which requires HUD to collect and report manufactured home sales and price information for the nation, census regions, states, and selected metropolitan areas and to monitor whether new manufactured homes are being placed on owned rather than rented lots. HUD also uses these data to monitor total housing production and its affordability.
Furthermore, the Manufactured Housing Survey serves as the basis for HUD's mandated indexing of loan limits. Section 2145 (b) of the Housing and Economic Recovery Act (HERA) of 2008 requires HUD to develop a method of indexing to annually adjust Title I manufactured home loan limits. This index is based on manufactured housing price data collected by this survey. Section 2145 of the HERA of 2008 also amends the maximum loan limits for manufactured home loans insured under Title I. HUD implemented the revised loan limits, as shown below, for all manufactured home loans for which applications are received on or after March 3, 2009.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Title 42 U.S.C. 5424 note, title 13 U.S.C. 8(b), and title 12, U.S.C., section 1701z–1.
Fish and Wildlife Service, Interior.
Notice of meeting.
We, the U.S. Fish and Wildlife Service, announce a public meeting of the Aquatic Nuisance Species (ANS) Task Force, which consists of 13 Federal and 14 ex-officio members. The ANS Task Force's purpose is to develop and implement a program for U.S. waters to prevent introduction and dispersal of aquatic invasive species (AIS); to monitor,
The ANS Task Force will meet from 8 a.m. to 5 p.m. on Wednesday, November 4, and Thursday, November 5, 2015. For security purposes, signup for the meeting is required. For more information, contact the ANS Task Force Executive Secretary (see
The ANS Task Force meeting will take place at the National Oceanic and Atmospheric Administration, Building 3 (SSMC3), Room 4527, 1315 East-West Highway, Silver Spring, MD 20910 (301–713–0174).
Donald R. MacLean, Acting Executive Secretary, ANS Task Force, by telephone at (703) 358–2108, or by email at
In accordance with the requirements of the Federal Advisory Committee Act, 5 U.S.C. App., we announce that the ANS Task Force will hold a meeting.
The ANS Task Force was established by the Nonindigenous Aquatic Nuisance Prevention and Control Act of 1990 (Act) (Pub. L. 106–580, as amended), and is composed of 13 Federal and 13 ex-officio members, and co-chaired by the U.S. Fish and Wildlife Service and the National Oceanic and Atmospheric Administration. The ANS Task Force provides advice on AIS infesting waters of the United States and other nations, among other duties, as specified in the Act.
• Fish passage needs and AIS threats.
• ANSTF accomplishment tracking.
• Special session on boating industry partnerships, including discussions on the “Building Consensus” effort and on boat design and construction in consideration of aquatic invasive species.
• Approval of both the North Carolina Aquatic Nuisance Species Management Plan and the revised New York State Aquatic Invasive Species Management Plan.
• Special session on economics, including discussions on the USFWS “National Survey for Hunting and Fishing, and Lionfish Modeling and Economics”.
• Special session on communications, including discussion on the new Communication/Education/Outreach Committee, and updates on the Stop Aquatic Hitchhikers! campaign and the revitalization of the Habitattitude campaign.
• Updates on numerous other ANSTF efforts, including:
○ Addressing AIS transport at federally managed water bodies.
○ ANSTF Involvement with National Invasive Species Awareness Week.
○ A national early detection and rapid response framework and emergency response funding plan.
○ The Arctic Strategy and AIS.
• Task Force Member updates and updates from all the Regional Panels.
The final agenda and other related meeting information will be posted on the ANS Task Force Web site at
Summary minutes of the meeting will be maintained by the Executive Secretary (see
Bureau of Indian Affairs, Interior.
Notice of reservation proclamation.
This notice informs the public that the Assistant Secretary—Indian Affairs proclaimed approximately 104.40 acres, more or less, as an addition to the Reservation of the Shakopee Mdewakanton Sioux Community of Minnesota on September 22, 2015.
Ms. Sharlene Round Face, Bureau of Indian Affairs, Division of Real Estate Services, MS–4642–MIB, 1849 C Street NW., Washington, DC 20240, Telephone: (202) 208–3615.
This notice is published in the exercise of authority delegated by the Secretary of the Interior to the Assistant Secretary—Indian Affairs by part 209 of the Departmental Manual.
A proclamation was issued according to the Act of June 18, 1934 (48 Stat. 986; 25 U.S.C. 467), for the land described below. The land was proclaimed to be an addition to the Shakopee Mdewakanton Sioux Community Reservation for the exclusive use of Indians entitled by enrollment or by tribal membership to residence at such reservation.
The East Half of the Southeast Quarter of Section 33, Township 115 North, Range 22 West of the 5th Principal Meridian, according to the United States Government Survey thereof and situated in Scott County, Minnesota.
That part of the West 24.00 acres of the Northwest Quarter of the Southwest Quarter of Section 34, Township 115 North, Range 22 West of the 5th Principal Meridian, Scott County, Minnesota lying West of the East 16.00 acres of said Northwest Quarter of the Southwest Quarter, according to the United States Government survey thereof and situated in Scott County, Minnesota.
This proclamation does not affect title to the land described above, nor does it affect any valid existing easements for public roads and highways, for public utilities and for railroads or pipelines and any other rights-of-way or reservations of record.
Bureau of Land Management, Interior.
Notice.
The purpose of this notice is to request public nominations for one vacant position on the Bureau of Land Management (BLM) Utah Resource Advisory Council (RAC), with the term expiring January 7, 2016. The RAC provides advice and recommendations to the BLM on land-use planning and management of the National System of Public Lands within Utah. The BLM will accept public nominations for 30 days after the publication of this notice.
All nominations must be received no later than November 2, 2015.
Nominations and completed applications for the Utah RAC should be sent to Sherry Foot, Special Programs Coordinator, BLM Utah State Office, 440 West 200 South, Suite 500, Salt Lake City, Utah 84101.
Sherry Foot at the address listed in the
The Federal Land Policy and Management Act (FLPMA) directs the Secretary of the Interior to involve the public in planning and issues related to management of lands administered by the BLM. Section 309 of FLPMA (43 U.S.C. 1739) directs the Secretary to establish 10- to 15-member, citizen-based councils that are consistent with the Federal Advisory Committee Act (FACA). As required by FACA, RAC membership must be balanced and representative of the various interests concerned with the management of the public lands.
The one position to be filled is in the following category:
Category Two—Representatives of nationally or regionally recognized environmental organizations, archaeological and historic organizations, dispersed recreation activities, and wild horse and burro organizations.
Nominees must be residents of Utah. The BLM will evaluate nominees based on their education, training, experience, and knowledge of the geographical area of the RAC. Nominees should demonstrate a commitment to collaborative resource decision making. The Obama Administration prohibits individuals who are currently federally-registered lobbyists from being appointed or re-appointed to FACA and non-FACA boards, committees, or councils.
The following must accompany all nominations:
43 CFR 1784.4–1
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act of 1976 and the Federal Advisory Committee Act of 1972, the U.S. Department of the Interior, Bureau of Land Management (BLM) Wyoming Resource Advisory Council (RAC) will meet as indicated below.
The meeting is scheduled for Thursday, October 29, 2015, from 10 a.m. to 6 p.m., and October 30, from 8 a.m. to noon.
The meeting will be conducted at the BLM Casper Field Office, 2987 Prospector Drive, Casper, Wyoming.
Christian Venhuizen, Wyoming Resource Advisory Council Coordinator, Wyoming State Office, 5353 Yellowstone Road, Cheyenne, WY 82009; telephone 307–775–6103; email
This 10-member RAC advises the Secretary of the Interior on a variety of management issues associated with public land management in Wyoming. Planned agenda topics include presentations on the BLM Wyoming coal program; Greater Sage-Grouse; BLM Fire, Fuels and Aviation Management; and follow-up to previous RAC meetings. On Thursday, October 29, the meeting will begin at 10 a.m., in the Casper Field Office's Platte River Conference Room and will conclude by 6 p.m. The meeting will resume Friday, October 30, with a public comment period at 8 a.m. in the conference room and the meeting will conclude by noon. Depending on the number of persons wishing to comment and time available, the time for individual oral comments may be limited. If there are no members of the public interested in speaking, the meeting will move promptly to the next agenda item. The public may also submit written comments to the RAC by emailing
Bureau of Land Management, Interior.
Notice.
The purpose of this notice is to reopen the request for public nominations for the Bureau of Land
All nominations must be received no later than November 2, 2015.
Send nomination packages to Courtney Whiteman, Public Affairs Specialist, BLM Colorado State Office, 2850 Youngfield St., Lakewood, CO 80215.
Courtney Whiteman, Public Affairs Specialist, BLM Colorado State Office. Phone: (303) 239–3668. Email:
The Federal Land Policy and Management Act (FLPMA) directs the Secretary of the Interior to involve the public in planning and issues related to management of lands administered by the BLM. Section 309 of FLPMA (43 U.S.C. 1739) directs the Secretary to establish 10- to 15-member citizen-based advisory councils that are consistent with the Federal Advisory Committee Act (FACA). As required by FACA, RAC membership must be balanced and representative of the various interests concerned with the management of the public lands. The rules governing RACs, found at 43 CFR subpart 1784, require that each RAC include the following three membership categories:
Those who have already submitted a nomination in response to the first and second calls for nominations to the Front Range RAC (published in the
The following must accompany all nominations for the Front Range RAC:
43 CFR 1784.4–1.
National Park Service, Interior.
Meeting notice.
Notice is hereby given in accordance with the Federal Advisory Committee Act, 5 U.S.C. Appendix 1–16, that the National Park System Advisory Board will meet November 4–5, 2015, in Boston, Massachusetts.
The Board will meet on November 4–5, 2015.
The meeting will be held at the Commandant's House, 21 2nd Avenue, Charlestown Navy Yard, Boston, Massachusetts 02139, telephone (617) 242–5611.
For information concerning the National Park System Advisory Board or to request to address the Board, contact Shirley Sears, National Park Service, MC 0004-Policy, 1849 C Street NW., Washington, DC 20240, telephone (202) 354–3955, email
The board meeting will be open to the public. The order of the agenda may be changed, if necessary, to accommodate travel schedules or for other reasons. Space and facilities to accommodate the public are limited and attendees will be accommodated on a first-come basis. Anyone may file with the Board a written statement concerning matters to be discussed. The Board also will permit attendees to address the Board, but may restrict the length of the presentations, as necessary to allow the Board to complete its agenda within the allotted time. Before including your address, telephone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you may ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Draft minutes of the meeting will be available for public inspection about 12 weeks after the meeting in the 7th floor conference room at 1201 Eye Street NW., Washington, DC.
Bureau of Reclamation, Interior.
Notice of public meeting.
The Colorado River Basin Salinity Control Advisory Council (Council) was established by the Colorado River Basin Salinity Control Act of 1974 (Pub. L. 93–320) (Act) to receive reports and advise Federal agencies on implementing the Act. In accordance with the Federal Advisory Committee Act, the Bureau of Reclamation announces that the Council will meet as detailed below. The meeting of the Council is open to the public.
The Council will convene the meeting on Wednesday, October 28, 2015, at 1:00 p.m. and adjourn at approximately 5:00 p.m. The Council will reconvene the meeting on Thursday, October 29, 2015, at 8:30 a.m. and adjourn the meeting at approximately 11:00 a.m.
The meeting will be held at the Embassy Suites—Paloma Village Hotel, 3110 East Skyline Drive, Tucson, Arizona. Send written comments to Mr. Kib Jacobson, Bureau of Reclamation, Upper Colorado Regional Office, 125 South State Street, Room 8100, Salt Lake City, Utah 84138–1147; telephone (801) 524–3753; facsimile (801) 524–3847; email at:
Kib Jacobson, telephone (801) 524–3753; facsimile (801) 524–3847; email at:
Any member of the public may file written statements with the Council before, during, or up to 30 days after the meeting either in person or by mail. To the extent that time permits, the Council chairman will allow public presentation of oral comments at the meeting. To allow full consideration of information by Council members, written notice must be provided at least 5 days prior to the meeting. Any written comments received prior to the meeting will be provided to Council members at the meeting.
The purpose of the meeting is to discuss the accomplishments of Federal agencies and make recommendations on future activities to control salinity. Council members will be briefed on the status of salinity control activities and receive input for drafting the Council's annual report. The Bureau of Reclamation, Bureau of Land Management, U.S. Fish and Wildlife Service, and United States Geological Survey of the Department of the Interior; the Natural Resources Conservation Service of the Department of Agriculture; and the Environmental Protection Agency will each present a progress report and a schedule of activities on salinity control in the Colorado River Basin. The Council will discuss salinity control activities, the contents of the reports, and the Basin States Program created by Public Law 110–246, which amended the Act.
Before including your address, phone number, email address, or other personal identifying information in your comment, please be advised that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
On the basis of the record
The Commission, pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. § 1675(c)), instituted this review on May 1, 2015 (80 FR 24968) and determined on August 4, 2015 that it would conduct an expedited review (80 FR 50027, August 18, 2015).
The Commission made this determination pursuant to section 751(c) of the Tariff Act of 1930 (19 U.S.C. § 1675(c)). It completed and filed its determination in this review on September 28, 2015. The views of the Commission are contained in USITC Publication 4568 (September 2015), entitled
By order of the Commission.
Notice is hereby given that, on September 15, 2015, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Pursuant to Section 6(b) of the Act, the identities of the parties to the venture are: TIBCO Software Inc., Palo Alto, CA; Oracle Corporation, Burlington, MA; R Foundation for Statistical Computing, Vienna, AUSTRIA; Google, Mountain View, CA; Mango Solutions, Chippenham, Wiltshire, UNITED KINGDOM; Alteryx Inc., Irvine, CA; RStudio Inc., Boston,
The general areas of R Consortium's planned activity are to: (a) Advance the worldwide promotion of and support for the R open source language and environment as the preferred language for statistical computing and graphics (the “Environment”); (b) establish, maintain, seek support for, and develop infrastructure projects and technical and infrastructure collaboration initiatives related to the Environment, and such other initiatives as may be appropriate to support, enable and promote the Environment; (c) encourage and increase user adoption, involvement with, and contribution to, the Environment; (d) facilitate communication and collaboration among users and developers of the Environment, the R Consortium and the R Foundation; (e) support and maintain policies set by the Board of Directors; and (f) undertake such other activities as may from time to time be appropriate to further the purpose and achieve the goals set forth above.
Notice is hereby given that, on September 9, 2015, pursuant to Section 6(a) of the National Cooperative Research and Production Act of 1993, 15 U.S.C. 4301
Specifically, Actica Consulting Ltd., Surrey, UNITED KINGDOM; Adept Technology Pvt. Ltd., Chennai, INDIA; Agency for Public Management and eGovernment, Oslo, NORWAY; Alliant Techsystems Operations LLC, Clearwater, FL; Archi Tacts, Inc., Coppell, TX; ARISE Consulting (SuZhou) Pte. Ltd., Shanghai, PEOPLE'S REPUBLIC OF CHINA; ATE Enterprises, Ltd., High Wycombe, UNITED KINGDOM; Cephas Consulting Corp., Tustin, CA; DAR Solutions L.L.C, Rockford, IL; EA-Xperts, Mannheim, GERMANY; GooBiz, Cergy, FRANCE; HCL Technologies, Ltd., Noida, INDIA; Incepture S.a.r.l., Rabat, MOROCCO; Information Systems Audit and Control Association, Inc., Rolling Meadows, IL; New Zealand Department of Internal Affairs, Wellington, NEW ZEALAND; Optimal Business Growth Ltd., Poole, UNITED KINGDOM; Palm View Consulting, Whitlock, BELGUIM; Shware Systems, Port Richey, FL; Software Engineering Competence Center, Giza, EGYPT; and University of Luxembourg, Luxembourg, LUXEMBOURG, have been added as parties to this venture.
Also, Aoyama Gakuin University, Tokyo, JAPAN; Architecting the Enterprise, High Wycombe, UNITED KINGDOM; Atos International SAS, Bezons, FRANCE; CPP Investment Board, Toronto, CANADA; Eflow, Inc., Shibuya-ku, JAPAN; Ericsson AB, Stockholm, SWEDEN; Estrat TI S.A. de C.V., Mexico City, MEXICO; Keio University, Kanagawa, JAPAN; Kutta Technologies, Inc., Phoenix, AZ; Nanfang Media Group, Guangzhou, PEOPLE'S REPUBLIC OF CHINA; QinetiQ NA, Stafford, VA; Silosmashers, Inc., Fairfax, VA; Sony Computer Science Laboratories, Tokyo, JAPAN; Strategic Communications, Louisville, KY; Symphony Ltd., Setagaya-ku, JAPAN; The Marlo Group, Southgate, AUSTRALIA; and Universite Laval CeRTAE, Quebec, CANADA, have withdrawn as parties to this venture.
No other changes have been made in either the membership or planned activity of the group research project. Membership in this group research project remains open, and TOG intends to file additional written notifications disclosing all changes in membership.
On April 21, 1997, TOG filed its original notification pursuant to Section 6(a) of the Act. The Department of Justice published a notice in the
The last notification was filed with the Department on May 7, 2015. A notice was published in the
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
30-day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will submit the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995. The proposed information collection was previously published in the
Comments are encouraged and will be accepted for an additional 30 days until November 2, 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 Carolyn King, Firearms Industry Programs Branch at
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:
• Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
• Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
• Evaluate whether and if so how the quality, utility, and clarity of the
• Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
1.
2.
3.
Form number: ATF Form 4473 (5300.9).
Component: Bureau of Alcohol, Tobacco, Firearms and Explosives, U.S. Department of Justice.
4.
Primary: Individuals or households.
Other: Business or other for-profit.
Abstract: The form is used to determine the eligibility, under the Gun Control Act (GCA), of a person to receive a firearm from a Federal firearms licensee and to establish the identity of the buyer/transferee. It is also used in law enforcement investigations/inspections to trace firearms and confirm that licensees are complying with their recordkeeping obligations under the GCA.
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., Room 3E–405B, Washington, DC 20530.
12:00 p.m., Tuesday, October 6, 2015.
U.S. Parole Commission, 90 K Street NE., 3rd Floor, Washington, DC
Closed.
Determination on six original jurisdiction cases.
Jacqueline Graham, Staff Assistant to the Chairman, U.S. Parole Commission, 90 K Street NE., 3rd Floor, Washington, DC 20530, (202) 346–7010.
10:00 a.m., October 6, 2015.
U.S. Parole Commission, 90 K Street NE., 3rd Floor, Washington, DC
Open.
Approval of June 2, 2015 minutes; Introduction of new Chief of Staff; Approval of Final Rule on Applying the 1972 DC Board Guidelines to DC Code Offenses Committed on or before March 3, 1985.
Jacqueline Graham, Staff Assistant to the Chairman, U.S. Parole Commission, 90 K Street NE., 3rd Floor, Washington, DC 20530, (202) 346–7010.
Employee Benefits Security Administration, U.S. Department of Labor.
Notice of exemption.
This document contains a notice of exemption from certain prohibited transaction restrictions of the Employee Retirement Income Security Act of 1974, as amended (ERISA or the Act), and the Internal Revenue Code of 1986, as amended (the Code). The exemption affects the ability of certain entities with specified relationships to Credit Suisse AG to continue to rely upon the relief provided by Prohibited Transaction Class Exemption 84–14 (PTE 84–14).
Scott Ness, Office of Exemption Determinations, Employee Benefits Security Administration, U.S. Department of Labor, telephone (202) 693–8561. (This is not a toll-free number).
A QPAM is a “Qualified Professional Asset Manager.” By definition, QPAMs are large regulated banks, savings and loan associations, insurance companies or federally registered investment advisors that meet certain standards of size and independence. PTE 84–14 permits these independent asset managers to engage in a variety of arm's length transactions with parties in interest with respect to the plans they
PTE 84–14 primarily permits QPAMs to engage in various arm's length transactions with parties in interest, and obviates the need to undertake time-consuming compliance checks for parties-in-interest, forego investment opportunities, or seek an individual exemption from the Department for each transaction. The conditions in the exemption were designed to ensure that the transactions covered therein are protective of, and in the interest of, affected plans.
The scope of the anti-criminal provision set forth in section I(g) of PTE 84–14 is very broad and covers entities with various relationships to a convicted entity. When one of these entities is convicted of specified crimes, the related QPAMs lose the ability to rely on the class exemption for 10 years following the date of the conviction, absent an individual exemption.
THE FIRST PROPOSED EXEMPTION: On September 3, 2014, the Department of Labor (the Department) published a proposed exemption in connection with Application No. D–11819, at 79 FR 52365 (the First Proposed Exemption), for certain entities with specified relationships to Credit Suisse AG, to continue to rely upon the relief provided by PTE 84–14, notwithstanding that a judgment of conviction (the Conviction) against Credit Suisse AG for one count of conspiracy to violate section 7206(2) of the Internal Revenue Code in violation of Title 18, United States Code, section 371, was pending in the District Court for the Eastern District of Virginia in Case Number 1:14–cr–188–RBS. The Department received ten comments and four requests for a hearing regarding that notice.
In anticipation that the judgment of conviction would be entered on November 21, 2014 (the Conviction Date), and recognizing that additional relevant information could be provided at the hearing, the Department issued three notices in the
THE TEMPORARY FINAL EXEMPTION: The Temporary Final Exemption became effective on the Conviction Date and will last approximately one year. Among other things, the exemption allowed Credit Suisse QPAMs to continue to engage in transactions covered by the QPAM Class Exemption, subject to enhanced conditions, while the Department considered the testimony and additional information provided at, and subsequent to, the hearing.
THE SECOND PROPOSED EXEMPTION: The Second Proposed Exemption, which correlates to this notice, described relief that was similar to the Temporary Final Exemption, but with a longer duration. The Department issued the Second Proposed Exemption after concluding that it would be beneficial to the Department's review to obtain further information regarding the concerns raised by commenters to the First Proposed Exemption.
THE HEARING: The Hearing Notice informed interested persons that the Department would hold a hearing on January 15, 2015, to discuss issues raised by commenters following publication of the First Proposed Exemption. The hearing was intended to solicit additional information regarding whether the Second Proposed Exemption was in the interest of, and protective of, plans and IRAs, and administratively feasible.
THIS NOTICE (THE SECOND FINAL EXEMPTION and THE REVOCATION): This document sets forth the Second Final Exemption, which relates to the Second Proposed Exemption. The record for this exemption includes the hearing transcript and hearing-related submissions, as well as comments received in connection with the Second Proposed Exemption. As commenters at the hearing raised issues related to the First Proposed Exemption, the record for this Notice also incorporates comments with respect to such exemption.
This Second Final Exemption covers the same transactions as those described in the Temporary Exemption, but contains enhanced conditions for the protection of plans and their participants and beneficiaries.
The record for this notice includes testimony and supplemental materials from the hearing, comments received in connection with the First Proposed Exemption, as well as comments received in connection with the publication of the Second Proposed Exemption. The testimony at the hearing and supplemental materials were mixed, with some speakers expressing support for granting an exemption and others expressing opposition. The hearing produced approximately 218 pages of testimony by 18 speakers, as well as supplemental materials.
The Department received six written comments with respect to the Second Proposed Exemption.
The sixth and final comment is a statement from the independent auditor that sought certain clarifications with respect to the operative language of the exemption. The comments received in connection with the hearing, the First Proposed Exemption, and the Second Proposed Exemption are described below. The Department has not reproduced the comments in their entirety, but has summarized the information. Complete copies of the transcript from the hearing and supplemental submissions can be found at
1.
A. Several commenters sought a denial of the requested exemption on the grounds that a denial would punish Credit Suisse AG and/or deter future criminal behavior by Credit Suisse AG.
Furthermore, the Department notes that the record upon which exemptive relief was proposed and is herein granted suggests that neither the Credit Suisse Affiliated QPAMs nor the Credit Suisse Related QPAMs were involved in the conduct underlying the Conviction. The record also supports a finding that the Credit Suisse Affiliated QPAMs and the Credit Suisse Related QPAMs (the Credit Suisse QPAMs) operate separately and independently of Credit Suisse AG with respect to their asset management decisions. Based on the facts of this case, the beneficial nature of the covered transactions, and the conditions imposed by the exemption, the Department believes that a full denial of exemptive relief is not warranted. The exemption requires plans with assets managed by Credit Suisse Affiliated QPAMs to be alerted to the Conviction. In this regard, the Credit Suisse Affiliated QPAMs must provide a notice of the proposed exemption along with a separate summary describing the facts that led to the Conviction, which has been submitted to the Department, and a prominently displayed statement that the Conviction results in a failure to meet a condition in PTE 84–14 to: (1) Each sponsor of an ERISA-covered plan and each beneficial owner of an IRA invested in an investment fund managed by a Credit Suisse Affiliated QPAM, or the sponsor of an investment fund in any case where a Credit Suisse Affiliated QPAM acts only as a sub-advisor to the investment fund; (2) each entity that may be a Credit Suisse Related QPAM; and (3) each ERISA-covered plan for which the New York Branch of Credit Suisse AG provides fiduciary securities lending services.
The exemption also facilitates the ability of such plans to transfer assets managed by a Credit Suisse Affiliated QPAM to non-Credit Suisse asset managers, without the imposition of an additional fee, penalty or charge, with only very narrow exceptions designed to prevent abusive investment practices and protect all investors in pooled funds in which such plans invest. In addition, each Credit Suisse Affiliated QPAM must agree not to waive, limit, or qualify the liability of the Credit Suisse Affiliated QPAM, or otherwise require indemnification of the QPAM, for violating ERISA or the Code or engaging in prohibited transactions.
The Department stresses that the act of selecting and retaining an investment manager service provider is a fiduciary act; and that a plan fiduciary is under a continuing duty to monitor the service provider's performance at reasonable intervals. Fiduciaries (including investment managers) should be reviewed by the appointing fiduciaries in such a manner as may be reasonably expected to ensure that their performance has been in compliance with the terms of the plan and statutory standards (
B. Another commenter suggested that the Department should require that the Credit Suisse QPAMs demonstrate a track record of legal compliance before an exemption is issued.
The exemption is focused on ensuring each QPAM's continued legal compliance. In this regard, the exemption requires that an annual exemption audit be performed by an independent fiduciary who is experienced in ERISA and the transactions covered by the exemption. The auditor must annually determine whether each Credit Suisse Affiliated QPAM has developed, implemented, maintained, and followed Policies requiring and reasonably designed to ensure that, among other things: The Credit Suisse Affiliated QPAM fully complies with ERISA's fiduciary duties and ERISA and the Code's prohibited transaction provisions and does not knowingly participate in any violations of these duties and provisions with respect to ERISA-covered plans and IRAs; (ii) the Credit Suisse Affiliated QPAM does not knowingly participate in any other person's violation of ERISA or the Code with respect to ERISA-covered plans and IRAs; (iii) any filings or statements made by the Credit Suisse Affiliated QPAM to regulators, including but not limited to, the Department of Labor, the Department of the Treasury, the Department of Justice, and the Pension Benefit Guaranty Corporation, on behalf of ERISA-covered plans or IRAs are materially accurate and complete, to the best of such QPAM's knowledge at that time; (iv) the Credit Suisse Affiliated QPAM does not make material misrepresentations or omit material information in its communications with such regulators with respect to ERISA-covered plans or IRAs, or make material misrepresentations or omit material information in its communications with ERISA-covered plan and IRA clients; (v) the Credit Suisse Affiliated QPAM complies with the terms of this exemption; and (vi) violations of, or failure to comply with the terms above, are corrected promptly upon discovery and any such violations or compliance failures not promptly corrected are reported, upon discovering the failure to promptly correct, in writing to appropriate corporate officers, the head of Compliance and the General Counsel of the relevant Credit Suisse Affiliated QPAM, the independent auditor responsible for reviewing compliance with the Policies, and a fiduciary of any affected ERISA-covered plan or IRA
Further, each year, the auditor must determine whether each Credit Suisse Affiliated QPAM has developed and implemented a program of training (the Training), conducted at least annually for relevant Credit Suisse Affiliated QPAM asset management, legal, compliance, and internal audit personnel. The Training must be set forth in the Policies and, at a minimum, covers the Policies, ERISA and Code compliance (including applicable fiduciary duties and the prohibited transaction provisions) and ethical conduct, the consequences for not complying with the conditions of this exemption, (including the loss of the exemptive relief provided herein), and prompt reporting of wrongdoing.
C. One other commenter suggested that the Department take a stronger role in its position as a regulator by declining Credit Suisse's exemption request.
2.
A. Some commenters to the First Proposed Exemption and at the hearing stated that the First Proposed Exemption did not contain adequate safeguards to protect the rights of participants and beneficiaries of plans. For instance, one commenter suggested that the audit should be extended to other controversial aspects of the financial industry, such as CEO awards and incentives. Other commenters suggested that no set of conditions would be adequate to protect plans and their participants and beneficiaries due to past deficiencies within the Credit Suisse organization, the severity of problems within the Credit Suisse organization, and the lack of isolation of the Credit Suisse QPAMs from the rest of the Credit Suisse organization.
3.
A. Commenters additionally described a longstanding and pervasive culture of wrongdoing within the Credit Suisse organization, including knowledge of corporate wrongdoing by senior executives. Commenters further suggested that the criminal behavior of Credit Suisse AG indicates that any assurances of legal compliance by the Credit Suisse Affiliated QPAMs given to the Department lacked credibility. Commenters brought to the Department's attention the participation of Credit Suisse Asset Management Limited, United Kingdom (CSAM UK) in knowingly violating federal sanctions laws by facilitating money laundering. Finally, commenters also identified several civil controversies involving the Credit Suisse QPAMs, including specifically Credit Suisse's involvement in certain real estate financing transactions related to residential and resort planned communities in various locations around the country.
The Department does not currently view the private controversies described above, as grounds to deny the requested exemption. However, the fiduciary of a plan or IRA should consider the involvement of the Credit Suisse QPAMs in a private controversy (as well as a criminal investigation) in its determination as to whether to hire and/or retain a Credit Suisse QPAM as a service provider.
4.
A. Some commenters argued that Section I(g) of PTE 84–14 clearly states that a conviction will bar an entity from serving as a QPAM. Accordingly, they contend that it is important to enforce
B. Commenters also considered the approximately $2.6 billion in penalties paid in connection with the Conviction to be insufficient and found it problematic that the party ultimately responsible for paying such penalties is the shareholders, rather than the individuals involved in the criminal conduct.
C. Additionally, some commenters suggested that a permanent exemption would indicate the Department's tolerance of cutting corners and criminal wrongdoing by powerful financial institutions at the expense of consumers and the law.
However, after reviewing the entire record, the Department believes that plans would be further protected to the extent the relief set forth herein extends no longer than November 17, 2019, with respect to any Credit Suisse Affiliated QPAM. If a Credit Suisse Affiliated seeks to engage in a transaction described in PTE 84–14 beyond that date, the Applicant must re-apply for exemptive relief in a timely fashion. The Department notes that, in re-applying for exemptive relief, the Applicant should be prepared to demonstrate that the conditions of this exemption have been met. The Department's review of any such application may also extend to Credit Suisse AG's compliance with relevant laws and regulations throughout the duration of this exemption.
D. Finally, some commenters suggested the Department has a role to play in enforcing criminal penalties for wrongdoing.
5.
A. Some of the commenters suggested that the Department should deny the exemption and force Credit Suisse to pay for any related costs to plans of moving to a new asset manager. Other commenters stated that the cost to plans would not be significant if the Department denied Credit Suisse's exemption application.
B. Two commenters suggested that the exemption would permit plans to enter into exotic or complex transactions that would otherwise not be customary for such plans or which would serve to harm the broader economy as well as Credit Suisse QPAMs' retiree clients.
6.
During the hearing, commenters also identified topics that they felt were not fully developed in the First Proposed Exemption. For instance, commenters questioned whether the Applicant identified all of the QPAMs that would be covered by this exemption. Commenters also questioned why Credit Suisse plan clients did not submit comments for the public record.
The Applicant was also required to, and did, notify all affected plans and Credit Suisse Related QPAMs of the First Proposed Exemption (Application No. D–11819), published in the
7.
Some commenters were concerned that the auditor required as a condition of this exemption would not be truly independent. One commenter additionally proposed that the auditor be chosen by the Department.
8.
A. Some commenters argued that Swiss bank secrecy laws undermine the integrity of the financial markets and would allow Credit Suisse QPAMs to continue to hide behind walls of secrecy if such QPAMs were accused of misusing plan assets.
B. Some commenters presented testimony and written submissions arguing that Credit Suisse failed to exercise its fiduciary responsibilities with respect to Swiss bank accounts opened during the period around World War II in that many accounts were unilaterally closed by Credit Suisse. Another commenter argued that Credit Suisse's transgressions with respect to non-plan and IRA investors is analogous to plans and IRAs, so Credit Suisse should not be trusted with plan and IRA assets.
In its comment to the Second Proposed Exemption, the Applicant requests certain confirmations and/or clarifications regarding: (1) The scope of the condition found in Section I(f) of the Second Proposed Exemption prohibiting the Credit Suisse Affiliated QPAMs from entering into transactions with Credit Suisse AG or engaging Credit Suisse AG to provide certain services with respect to investment funds managed by such QPAMs; (2) the interaction between the Policies and Training requirements found in Section I(h) of the Second Proposed Exemption; (3) the scope of the audit requirement found in Section I(i) of the Second Proposed Exemption; (4) the scope of the requirements of Section I(k); and (5) the identity of the ERISA-covered plans and IRAs required to receive the notice described in Section I(m) of the Second Proposed Exemption. The Applicant's requests and the Department's responses are described below, in addition to a description of certain modifications to the Second Proposed Exemption made by the Department which are related to the Applicant's comment regarding the audit requirement.
9.
Section I(f) of the Second Proposed Exemption provides “[a] Credit Suisse Affiliated QPAM will not use its authority or influence to direct an `investment fund' . . . that is subject to ERISA and managed by such Credit Suisse Affiliated QPAM to enter into any transaction with Credit Suisse AG or engage Credit Suisse AG to provide additional services to such investment fund, for a direct or indirect fee borne by such investment fund regardless of whether such transactions or services may otherwise be within the scope of relief provided by an administrative or statutory exemption.” The Applicant requests confirmation that Section I(f) would not disallow a Credit Suisse Affiliated QPAM from trading in markets where Credit Suisse AG provides local subcustody services to an unaffiliated global custodian, where the Credit Suisse Affiliated QPAM has no control over the global custodian's selection of the local subcustodian. According to the Applicant, the unaffiliated global custodian engaged by a plan's named fiduciary, not the Credit Suisse Affiliated QPAM, selects and hires local subcustodians. However, the Applicant states that in some markets, Credit Suisse AG may be the only subcustodian available. According to the Applicant, to the extent that a Credit Suisse Affiliated QPAM enters into a transaction in a market where Credit Suisse AG has been selected as the local subcustodian, Credit Suisse AG might receive additional compensation from the global custodian.
The Department declines to provide the confirmation requested above. In this regard, the Department is concerned about the potential for self-dealing inasmuch as, depending on the facts and circumstances, a Credit Suisse Affiliated QPAM might effectively use its “authority or influence to direct” an investment fund to “enter into” a “transaction with” Credit Suisse AG or “provide additional services, for a fee borne by” the investment fund.
10.
Section I(h)(2) of the Second Proposed Exemption requires each Credit Suisse Affiliated QPAM to develop and implement Training described therein, that is “set forth in the Policies and, at a minimum, covers the Policies, ERISA and Code compliance (including applicable fiduciary duties and the prohibited transaction provisions) and ethical conduct, the consequences for not complying with the conditions of this exemption, (including the loss of the exemptive relief provided herein), and prompt reporting of wrongdoing.” The Applicant requests that the Department confirm that this condition requires the Policies to expressly provide for the Training, but that the actual Training materials may be separate from the Policies and need not be duplicated verbatim within the Policies.
The Department stresses that although the actual Training materials need not be duplicated within the Policies, the Policies must provide for, and
11.
Section I(i)(1) of the Second Proposed Exemption requires that the Credit Suisse Affiliated QPAMs submit to an annual audit conducted by an independent auditor. The condition requires that “the first of the audits must be completed no later than twelve (12) months after the date of Conviction and must cover the first six-month period that begins on the date of Conviction; all subsequent audits must cover the following corresponding twelve-month periods and be completed no later than six (6) months after the period to which [the audit] applies.” The Applicant requests confirmation that the final audit need only cover the last six months of the disqualifying period under Section I(g) of PTE 84–14.
The Department acknowledges that the timing of the audits required by the Second Proposed Exemption differs from the timing of the first two audits required by PTE 2014–11, which may cause confusion regarding compliance with the audit condition for this exemption. In this regard, the two audits required by PTE 2014–11, together, cover the twelve month period ending on November 20, 2015. The Department has modified the language in Section I(i)(1) of the Second Proposed Exemption, such that the initial audit required by this exemption will cover the twelve month period beginning on November 21, 2015, and ending on November 20, 2016. Each subsequent audit will also start on November 21, and end on the following November 20. For consistency with PTE 2014–11, the Department has changed the effective date of this exemption, to November 18, 2015, which is the first day following the expiration of relief set forth in that exemption. Furthermore, the Department has modified Section I(i)(1) to provide that “the audit requirement must be incorporated in the Policies . . . .”
12.
The Department notes that a robust, transparent audit conducted by a sophisticated independent auditor, for the entire period covered by this exemption, is an important condition for relief under this exemption. Therefore, the Department has modified the Second Proposed Exemption in order to ensure the independence and rigor of the audit, bolster the public record and ensure transparency,
The Department added new Section I(i)(2), in part, in order to ensure that the auditor would have access to all the information necessary to satisfy the requirements under this exemption, and to assist in achieving full transparency with regard to the Credit Suisse Affiliated QPAMs' Policies and Training and to their attempts to comply with this exemption. The Department's changes to Section I(i) described herein also reflect the assertions made by Credit Suisse at the public hearing on January 15, 2015, that the auditor(s) would have full, unfettered access. In this regard, the Department notes that the Applicant's assertions that the auditor would have unfettered access as of the date of the hearing constitute an essential part of the record, without which the Department would not have been able to make its required findings under section 408(a) of the Act. Newly added Section I(i)(2) provides that, “[t]o the extent necessary for the auditor, in its sole opinion, to complete its audit and comply with the conditions for relief described herein, each Credit Suisse Affiliated QPAM and, if applicable, Credit Suisse AG, will grant the auditor unconditional access to its business, including, but not limited to: its computer systems, business records, transactional data, workplace locations, training materials, and personnel.”
The Department has added new Section I(i)(10) to the exemption, in order to provide additional transparency and to allow the Department the opportunity to verify the independence of any auditor or other entity engaged by a Credit Suisse Affiliated QPAM in its efforts to comply with the requirements of this exemption. Specifically, new Section I(i)(10) provides that “[e]ach Credit Suisse Affiliated QPAM and the auditor will submit to OED (A) any engagement agreement(s) entered into pursuant to the engagement of the auditor under this exemption, and (B) any engagement agreement entered into with any other entities retained in connection with such QPAM's compliance with the Training or Policies conditions of this exemption, no later than twelve (12) months after the date of the Conviction (and one month after the execution of any agreement thereafter).”
The Department has added new Section I(i)(11), in order to provide the Department with additional oversight of, and to ensure the transparency of, the audit process. Section I(i)(11), as added, provides that “[t]he auditor shall provide OED, upon request, all of the workpapers created and utilized in the course of the audit, including, but not limited to: the audit plan, audit testing, identification of any instances of noncompliance by the relevant Credit Suisse Affiliated QPAM, and an explanation of any corrective or remedial actions taken by the applicable Credit Suisse Affiliated QPAM.” In connection with this addition, the Department has struck the last two sentences from Section I(i)(5) of the Second Proposed Exemption as such sentences are now subsumed in new Section I(i)(11).
The Department has added new Section I(i)(12) in order to provide the Department with additional oversight in the selection of any replacement auditor and the ability to verify such replacement auditor's independence and qualifications. Newly added Section I(i)(12) provides that, in the event that the Applicant contemplates replacing the current auditor, “Credit Suisse AG must notify the Department at least 30 days prior to any substitution of an auditor, except that no such replacement will meet the requirements of this paragraph unless and until Credit Suisse AG demonstrates to the Department's satisfaction that such new auditor is independent of Credit Suisse AG, experienced in the matters that are the subject of the exemption, and capable of making the determinations required of this exemption.”
The Department also made certain clarifying modifications to Section I(i)(4) of the Second Proposed Exemption to more accurately describe the information required in the Audit Report and to reinforce the requirement that the auditor must test for the Credit Suisse Affiliated QPAM's operational compliance with the Policies and Training requirements. Accordingly, the Department has modified the first sentence of Section I(i)(4) of the Second Proposed Exemption by substituting the word “procedures” for “steps,” and the second sentence by adding the phrase “and compliance with” to describe the auditor's determinations with regard to the Policies and Training.
Finally, the Department has updated OED's mailing address for each Credit Suisse Affiliated QPAM's Audit Report found in Section I(i)(8) of the proposed exemption, and renumbered Sections I(i)(2) through I(i)(8) of the Second Proposed Exemption to reflect the addition of new Section I(i)(2) described above.
13.
Section I(k) of the Second Proposed Exemption provides that, with respect to each ERISA-covered plan or IRA for which a Credit Suisse Affiliated QPAM provides asset management or other discretionary fiduciary services, each Credit Suisse Affiliated QPAM agrees, to certain undertakings, including among other things, “(4) not to restrict the ability of such ERISA-covered plan or IRA to terminate or withdraw from its arrangement with the Credit Suisse Affiliated QPAM; and (5) not to impose any fees, penalties, or charges for such termination or withdrawal with the exception of reasonable fees, appropriately disclosed in advance, that are specifically designed to prevent generally recognized abusive investment practices or specifically designed to ensure equitable treatment of all investors in a pooled fund in the event such withdrawal or termination may have adverse consequences for all other investors, provided that such fees are applied consistently and in like manner to all such investors.”
The Department has become aware that there is some confusion about whether the exception to the restrictions in subparagraph (5) (
Furthermore, Section I(k) of the Second Proposed Exemption provides that each Credit Suisse Affiliated QPAM will provide a notice to each ERISA-covered plan or IRA for which a Credit Suisse Affiliated QPAM provides asset management or other discretionary fiduciary services, within six (6) months of the date of publication of this notice of exemption in the
14.
Pursuant to Section I(m) of the Second Proposed Exemption, the Credit Suisse Affiliated QPAMs were required to provide certain disclosures to “(1) each sponsor of an ERISA-covered plan and each beneficial owner of an IRA invested in an investment fund managed by a Credit Suisse Affiliated QPAM, or the sponsor of an investment fund in any case where a Credit Suisse Affiliated QPAM acts only as a sub-advisor to the investment fund; (2) each entity that may be a Credit Suisse Related QPAM; and (3) each ERISA-covered plan for which the New York Branch of Credit Suisse AG provides fiduciary securities lending services.” In its comment, the Applicant notes that notices were sent to interested persons, as agreed upon with the Department, and in accordance with Section I(m) of the Second Proposed Exemption. However, the Applicant requests confirmation that the ERISA-covered plans and IRAs referred to in Sections I(m)(1) and (2) are those (A) with respect to which PTE 84–14 may be used; and (B) that were clients of Credit Suisse Affiliated QPAMs or Credit Suisse AG as of the date that the Second Proposed Exemption was published in the
The Department concurs with the Applicant's requested confirmation.
The auditor requests confirmations and/or clarifications concerning: (1) The method which the auditor contemplates testing each Credit Suisse Affiliated QPAM's compliance with such QPAM's Policies in accordance with Section I(i)(3) of the Second Proposed Exemption; (2) the required determinations to be made by the auditor in the Audit Report in Section I(i)(4) of the Second Proposed Exemption; (3) the timing of the first and second audit reports and of the second audit specified by Section I(i)(1) of the Second Proposed Exemption; and (4) the scope of the audit as it relates to the requirement in Section (h)(1) of the Second Proposed Exemption for the Credit Suisse Affiliated QPAMs to develop, implement, maintain, and follow the Policies described therein.
15.
The auditor sought the Department's views regarding the auditor's audit plan, as it relates to Section I(i)(3) of the Second Proposed Exemption, which requires that the auditor “test each Credit Suisse Affiliated QPAM's operational compliance with the Policies . . . .” Further, Section I(h)(1) of the Second Proposed Exemption requires that each Credit Suisse Affiliated QPAM “immediately develops, implements, maintains, and follows the Policies requiring and reasonably designed to ensure that . . . (ii) the Credit Suisse Affiliated QPAM fully complies with ERISA's fiduciary duties and ERISA and the Code's prohibited transaction provisions and does not knowingly participate in any violations of these duties and provisions with respect to ERISA-covered plans and IRAs.”
The auditor states that, assuming that the Policies are deemed to be adequate, it plans to test each Credit Suisse Affiliated QPAM's operational compliance with the Policies, including its compliance with ERISA's fiduciary duties and ERISA and the Code's prohibited transaction provisions, by interviewing relevant personnel, gathering related documentation and evaluating a representative sample of transactions conducted by each Credit Suisse Affiliated QPAM for ERISA-covered plans and IRAs over the covered period. Furthermore, the auditor states that each review would test each Credit Suisse Affiliated QPAM's compliance with the Policies' requirements related to: (a) Compliance with ERISA, including the Act's fiduciary, prohibited transaction, and reporting provisions; (b) ERISA corrections; (c) on-boarding ERISA client portfolios (
The Department notes that the contemplated testing and review described above is consistent with the Department's expectations concerning the auditor's responsibilities under Section I(i) of the exemption. However, the Department is not, at this time, taking a view herein whether the auditor's contemplated testing and review described above will be sufficient to satisfy its responsibilities under the exemption. The Department anticipates that the auditor's final audit plan and its actual audit testing and review may be different than that described above, depending on the facts and circumstances and actual conditions as they develop, in order to ensure the relevant requirements of this exemption have been met.
16.
Section I(i)(4) of the Second Proposed Exemption provides, in relevant part, that “[a]ny determinations by the auditor that the respective Credit Suisse Affiliated QPAM has implemented, maintained, and followed sufficient Policies and Training shall not be based solely or in substantial part on an absence of evidence indicating noncompliance.” The auditor requests confirmation that this sentence requires the auditor's determinations to be based on the independent compliance review that the auditor conducts itself and not simply upon representations made by Credit Suisse Affiliated QPAMs with respect to compliance with the Policies and Training requirements over the covered period.
The Department confirms, in part, the auditor's request, as the determinations to be made under the exemption require the auditor to do its own independent compliance review and not simply rely upon the representations made by the Credit Suisse Affiliated QPAM. The Department also notes that Section I(i)(4) of the Second Proposed Exemption requires that any finding that the Credit Suisse Affiliated QPAM has complied with the requirements under Section I(h) be based on evidence that demonstrates the Credit Suisse Affiliated QPAM has actually implemented, maintained, and followed sufficient Policies and Training, as opposed to, for example, a finding that the Credit Suisse Affiliated QPAM has not violated ERISA, and therefore the Policies and Training in place to prevent such violations are deemed sufficient.
17.
The auditor requests a clarification regarding the timing of the first audit report, since the audit requirement under PTE 2014–11 and the Second Proposed Exemption both cover the same time period but provide different due dates for the audit report. Furthermore, the auditor requests that the Department clarify whether the first full year annual audit specified in the Second Proposed Exemption obviates the need for the second six month audit period under PTE 2014–11. The Department believes that the clarifications described above address the auditor's requests.
18.
Section I(h)(1) of the Second Proposed Exemption requires that “[e]ach Credit Suisse Affiliated QPAM immediately develops, implements, maintains, and follows written policies (the Policies) requiring and reasonably designed to ensure that . . . (v) the Credit Suisse Affiliated QPAM does not make material misrepresentations or omit material information in its communications with such regulators with respect to ERISA-covered plans or IRAs, or make material misrepresentations or omit material information in its communications with ERISA-covered plan and IRA clients.” The auditor requests a confirmation that, in connection with testing each Credit Suisse Affiliated QPAM's operational compliance with its Policies, the audit will only relate to “communications” in the form of written documents.
The Department did not intend that the audit be restricted only to written documents. The Department expects that if the auditor is privy to relevant oral or other non-written communications, the auditor will also consider those communications in connection with performing the audit. Accordingly, in the Department's view, the auditor's responsibilities extend to any communications, written or otherwise, that exist in reviewable form, including notes of meetings, audio and video recordings, powerpoints, computer files, and any other media, provided that such information can reasonably be assumed to have been used in any communications referred to in Section I(h)(1) of the exemption.
Given that substantial changes have been made to the proposed exemption, as reflected in this final exemption, the Department is requiring that ERISA-covered plans and IRAs with assets managed by Credit Suisse Affiliated QPAMs in reliance of PTE 84–14 receive a copy of this final exemption no later than 90 days following the date of publication in the
After giving full consideration to the entire record, including the written comments, subject to the Department's responses thereto, the Department has decided to grant the exemption. The complete application file, with copies of the comments, is available for public inspection in the Public Disclosure Room of the Employee Benefits Security Administration, Room N–1515, U.S. Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210.
For a more complete statement of the facts and representations supporting the Department's decision to grant this exemption, refer to the First Proposed Exemption, published in the
The attention of interested persons is directed to the following:
(1) The fact that a transaction is the subject of an exemption under section 408(a) of the Act or section 4975(c)(2) of the Code does not relieve a fiduciary or other party in interest or disqualified person from certain other provisions of the Act and/or the Code, including any prohibited transaction provisions to which the exemption does not apply and the general fiduciary responsibility provisions of section 404 of the Act, which, among other things, require a fiduciary to discharge his duties respecting the plan solely in the interest of the participants and beneficiaries of the plan and in a prudent fashion in accordance with section 404(a)(1)(B) of the Act; nor does it affect the requirement of section 401(a) of the Code that the plan must operate for the exclusive benefit of the employees of the employer maintaining the plan and their beneficiaries;
(2) In accordance with section 408(a) of ERISA and section 4975(c)(2) of the Code, the Department makes the following determinations: the exemption is administratively feasible, the exemption is in the interests of affected plans and of their participants and beneficiaries, and the exemption is protective of the rights of participants and beneficiaries of such plans;
(3) The exemption is supplemental to, and not in derogation of, any other
(4) The availability of this exemption is subject to the express condition that the material facts and representations contained in the application accurately describe all material terms of the transaction which is the subject of the exemption.
Accordingly, the following exemption is granted under the authority of section 408(a) of ERISA and section 4975(c)(2) of the Code and in accordance with the procedures set forth in 29 CFR part 2570, subpart B (76 FR 66637, 66644, October 27, 2011):
The Credit Suisse Affiliated QPAMs and the Credit Suisse Related QPAMs shall not be precluded from relying on the relief provided by Prohibited Transaction Class Exemption (PTE) 84–14
(a) Any failure of the Credit Suisse Affiliated QPAMs or the Credit Suisse Related QPAMs to satisfy Section I(g) of PTE 84–14 arose solely from the Conviction;
(b) The Credit Suisse Affiliated QPAMs and the Credit Suisse Related QPAMs (including officers, directors, agents other than Credit Suisse AG, and employees of such QPAMs) did not participate in the criminal conduct of Credit Suisse AG that is the subject of the Conviction;
(c) The Credit Suisse Affiliated QPAMs and the Credit Suisse Related QPAMs did not directly receive compensation in connection with the criminal conduct of Credit Suisse AG that is the subject of the Conviction;
(d) The criminal conduct of Credit Suisse AG that is the subject of the Conviction did not directly or indirectly involve the assets of any plan subject to Part 4 of Title I of ERISA (an ERISA-covered plan) or section 4975 of the Code (an IRA);
(e) Credit Suisse AG did not provide any fiduciary services to ERISA-covered plans or IRAs, except in connection with securities lending services of the New York Branch of Credit Suisse AG, or act as a QPAM for ERISA-covered plans or IRAs;
(f) A Credit Suisse Affiliated QPAM will not use its authority or influence to direct an “investment fund” (as defined in Section VI(b) of PTE 84–14) that is subject to ERISA and managed by such Credit Suisse Affiliated QPAM to enter into any transaction with Credit Suisse AG or engage Credit Suisse AG to provide additional services to such investment fund, for a direct or indirect fee borne by such investment fund regardless of whether such transactions or services may otherwise be within the scope of relief provided by an administrative or statutory exemption;
(g) Each Credit Suisse Affiliated QPAM will ensure that it does not engage or employ any person involved in the criminal conduct that underlies the Conviction in connections with transactions involving any “investment fund” (as defined in Section VI(b) of PTE 84–14) subject to ERISA and managed by such Credit Suisse Affiliated QPAMs;
(h) (1) Each Credit Suisse Affiliated QPAM immediately develops, implements, maintains, and follows written policies (the Policies) requiring and reasonably designed to ensure that: (i) The asset management decisions of the Credit Suisse Affiliated QPAM are conducted independently of Credit Suisse AG's management and business activities; (ii) the Credit Suisse Affiliated QPAM fully complies with ERISA's fiduciary duties and ERISA and the Code's prohibited transaction provisions and does not knowingly participate in any violations of these duties and provisions with respect to ERISA-covered plans and IRAs; (iii) the Credit Suisse Affiliated QPAM does not knowingly participate in any other person's violation of ERISA or the Code with respect to ERISA-covered plans and IRAs; (iv) any filings or statements made by the Credit Suisse Affiliated QPAM to regulators, including but not limited to, the Department of Labor, the Department of the Treasury, the Department of Justice, and the Pension Benefit Guaranty Corporation, on behalf of ERISA-covered plans or IRAs are materially accurate and complete, to the best of such QPAM's knowledge at that time; (v) the Credit Suisse Affiliated QPAM does not make material misrepresentations or omit material information in its communications with such regulators with respect to ERISA-covered plans or IRAs, or make material misrepresentations or omit material information in its communications with ERISA-covered plan and IRA clients; (vi) the Credit Suisse Affiliated QPAM complies with the terms of this exemption; and (vii) any violations of or failure to comply with items (ii) through (vi) are corrected promptly upon discovery and any such violations or compliance failures not promptly corrected are reported, upon discovering the failure to promptly correct, in writing to appropriate corporate officers, the head of Compliance and the General Counsel of the relevant Credit Suisse Affiliated QPAM, the independent auditor responsible for reviewing compliance with the Policies, and a fiduciary of any affected ERISA-covered plan or IRA where such fiduciary is independent of Credit Suisse AG; however, with respect to any ERISA-covered plan or IRA sponsored by an “affiliate” (as defined in Section VI(d) of PTE 84–14) of Credit Suisse AG or beneficially owned by an employee of Credit Suisse AG or its affiliates, such fiduciary does not need to be independent of Credit Suisse AG; Credit Suisse Affiliated QPAMs will not be treated as having failed to develop, implement, maintain, or follow the Policies, provided that they correct any instances of noncompliance promptly when discovered or when they reasonably should have known of the noncompliance (whichever is earlier), and provided that they adhere to the reporting requirements set forth in this item (vii);
(2) Each Credit Suisse Affiliated QPAM immediately develops and implements a program of training (the Training), conducted at least annually for relevant Credit Suisse Affiliated QPAM asset management, legal, compliance, and internal audit personnel; the Training shall be set forth in the Policies and, at a minimum, cover the Policies, ERISA and Code compliance (including applicable fiduciary duties and the prohibited transaction provisions) and ethical conduct, the consequences for not complying with the conditions of this exemption, (including the loss of the exemptive relief provided herein), and prompt reporting of wrongdoing;
(i) (1) Each Credit Suisse Affiliated QPAM submits to an audit conducted annually by an independent auditor, who has been prudently selected and who has appropriate technical training and proficiency with ERISA to evaluate
(2) To the extent necessary for the auditor, in its sole opinion, to complete its audit and comply with the conditions for relief described herein, each Credit Suisse Affiliated QPAM and, if applicable, Credit Suisse AG, will grant the auditor unconditional access to its business, including, but not limited to: Its computer systems, business records, transactional data, workplace locations, training materials, and personnel;
(3) The auditor's engagement shall specifically require the auditor to determine whether each Credit Suisse Affiliated QPAM has developed, implemented, maintained, and followed Policies in accordance with the conditions of this exemption and developed and implemented the Training, as required herein;
(4) The auditor's engagement shall specifically require the auditor to test each Credit Suisse Affiliated QPAM's operational compliance with the Policies and Training;
(5) For each audit, the auditor shall issue a written report (the Audit Report) to Credit Suisse AG and the Credit Suisse Affiliated QPAM to which the audit applies that describes the procedures performed by the auditor during the course of its examination. The Audit Report shall include the auditor's specific determinations regarding the adequacy of, and compliance with, the Policies and Training; the auditor's recommendations (if any) with respect to strengthening such Policies and Training; and any instances of the respective Credit Suisse Affiliated QPAM's noncompliance with the written Policies and Training described in paragraph (h) above. Any determinations made by the auditor regarding the adequacy of the Policies and Training and the auditor's recommendations (if any) with respect to strengthening the Policies and Training of the respective Credit Suisse Affiliated QPAM shall be promptly addressed by such Credit Suisse Affiliated QPAM, and any actions taken by such Credit Suisse Affiliated QPAM to address such recommendations shall be included in an addendum to the Audit Report. Any determinations by the auditor that the respective Credit Suisse Affiliated QPAM has implemented, maintained, and followed sufficient Policies and Training shall not be based solely or in substantial part on an absence of evidence indicating noncompliance. In this last regard, any finding that the Credit Suisse Affiliated QPAM has complied with the requirements under this subsection must be based on evidence that demonstrates the Credit Suisse Affiliated QPAM has actually implemented, maintained, and followed the Policies and Training required by this exemption, and not solely on evidence that demonstrates that the Credit Suisse Affiliated QPAM has not violated ERISA;
(6) The auditor shall notify the respective Credit Suisse Affiliated QPAM of any instances of noncompliance identified by the auditor within five (5) business days after such noncompliance is identified by the auditor, regardless of whether the audit has been completed as of that date;
(7) With respect to each Audit Report, the General Counsel or one of the three most senior executive officers of the Credit Suisse Affiliated QPAM to which the Audit Report applies certifies in writing, under penalty of perjury, that the officer has reviewed the Audit Report and this exemption; addressed, corrected, or remediated any inadequacies identified in the Audit Report; and determined that the Policies and Training in effect at the time of signing are adequate to ensure compliance with the conditions of this exemption and with the applicable provisions of ERISA and the Code;
(8) An executive officer of Credit Suisse AG reviews the Audit Report for each Credit Suisse Affiliated QPAM and certifies in writing, under penalty of perjury, that such officer has reviewed each Audit Report;
(9) Each Credit Suisse Affiliated QPAM provides its certified Audit Report to the Department's Office of Exemption Determinations (OED), 200 Constitution Avenue NW, Suite 400, Washington DC 20210, no later than 30 days following its completion, and each Credit Suisse Affiliated QPAM makes its Audit Report unconditionally available for examination by any duly authorized employee or representative of the Department, other relevant regulators, and any fiduciary of an ERISA-covered plan or IRA, the assets of which are managed by such Credit Suisse Affiliated QPAM;
(10) Each Credit Suisse Affiliated QPAM and the auditor will submit to OED (A) any engagement agreement(s) entered into pursuant to the engagement of the auditor under this exemption, and (B) any engagement agreement entered into with any other entities retained in connection with such QPAM's compliance with the Training or Policies conditions of this exemption, no later than twelve (12) months after the date of the Conviction (and one month after the execution of any agreement thereafter);
(11) The auditor shall provide OED, upon request, all of the workpapers created and utilized in the course of the audit, including, but not limited to: The audit plan, audit testing, identification of any instances of noncompliance by the relevant Credit Suisse Affiliated QPAM, and an explanation of any corrective or remedial actions taken by the applicable Credit Suisse Affiliated QPAM; and
(12) Credit Suisse AG must notify the Department at least 30 days prior to any substitution of an auditor, except that no such replacement will meet the requirements of this paragraph unless and until Credit Suisse AG demonstrates to the Department's satisfaction that such new auditor is independent of Credit Suisse AG, experienced in the matters that are the subject of the exemption, and capable of making the determinations required of this exemption;
(j) The Credit Suisse Affiliated QPAMs comply with each condition of PTE 84–14, as amended, with the sole exception of the violation of Section I(g) that is attributable to the Conviction;
(k) Effective from the date of publication of this exemption notice in the
(l) Each Credit Suisse Affiliated QPAM will maintain records necessary to demonstrate that the conditions of this exemption have been met for six (6) years following the date of any transaction for which such Credit Suisse Affiliated QPAM relies upon the relief in the exemption;
(m) The Credit Suisse Affiliated QPAMs provided a notice of the proposed exemption along with a separate summary describing the facts that led to the Conviction, which has been submitted to the Department, and a prominently displayed statement that the Conviction results in a failure to meet a condition in PTE 84–14 to: (1) Each sponsor of an ERISA-covered plan and each beneficial owner of an IRA invested in an investment fund managed by a Credit Suisse Affiliated QPAM, or the sponsor of an investment fund in any case where a Credit Suisse Affiliated QPAM acts only as a sub-advisor to the investment fund; (2) each entity that may be a Credit Suisse Related QPAM; and (3) each ERISA-covered plan for which the New York Branch of Credit Suisse AG provides fiduciary securities lending services; and
(n) A Credit Suisse Affiliated QPAM will not fail to meet the terms of this exemption solely because a Credit Suisse Related QPAM or a different Credit Suisse Affiliated QPAM fails to satisfy a condition for relief under this exemption. A Credit Suisse Related QPAM will not fail to meet the terms of this exemption solely because Credit Suisse AG, a Credit Suisse Affiliated QPAM, or a different Credit Suisse Related QPAM fails to satisfy a condition for relief under this exemption;
(o) ERISA-covered plans and IRAs with assets managed by Credit Suisse Affiliated QPAMs in reliance of PTE 84–14 must receive a copy of this final exemption no later than 90 days following the date of publication in the
(a) The term “Credit Suisse Affiliated QPAM” means a “qualified professional asset manager” (as defined in section VI(a)
(b) The term “Credit Suisse Related QPAM” means any current or future “qualified professional asset manager” (as defined in section VI(a) of PTE 84–14) that relies on the relief provided by PTE 84–14, and with respect to which Credit Suisse AG owns a direct or indirect five percent or more interest, but with respect to which Credit Suisse AG is not an “affiliate” (as defined in Section VI(d) of PTE 84–14).
(c) The term “Conviction” means the judgment of conviction against Credit Suisse AG for one count of conspiracy to violate section 7206(2) of the Internal Revenue Code in violation of Title 18, United States Code, Section 371, that was entered in the District Court for the Eastern District of Virginia in Case Number 1:14–cr–188–RBS, on November 21, 2014.
National Aeronautics and Space Administration.
Notice of intent to grant partially exclusive license.
This notice is issued in accordance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i). NASA hereby gives notice of its intent to grant a partially-exclusive license in the United States to practice the invention described and claimed in U.S. Patent No. 7,623,972 for an invention entitled “Detection of Presence of Chemical Precursors”; U.S. Patent No. 7,801,687 for an invention entitled “Chemical Sensors Using Coated or Doped Carbon Nanotube Networks”; U.S. Patent No. 7,968,054 for an invention entitled “Nanostructure Sensing and Transmission Of Gas Data”; and U.S. Patent No. 8,000,903 for an invention entitled “Coated or Doped Carbon Nanotube Network Sensors as Affected by Environmental Parameters”; and ARC–16902–1 for an invention entitled “Nanosensors for medical diagnosis”; and ARC–16292–1 for an invention entitled “Nanosensor/Cell Phone Hybrid for Detecting Chemicals and Concentrations,” to The Medical Innovation Group, LLC, having its principal place of business at 416 Mount Airy Road, Basking Ridge, NJ 07920. The patent rights in this invention have been assigned to the United States of America as represented by the Administrator of the National Aeronautics and Space Administration. The prospective partially-exclusive license will comply with the terms and conditions of 35 U.S.C. 209 and 37 CFR 404.7.
The prospective partially exclusive license may be granted unless, within fifteen (15) days from the date of this published notice, NASA receives written objections including evidence and argument that establish that the grant of the license would not be consistent with the requirements of 35 U.S.C. 209 and 37 CFR 404.7.
Objections relating to the prospective license may be submitted to Patent Counsel, Office of Chief Counsel, NASA Ames Research Center, Mail Stop 202A–4, Moffett Field, CA 94035–1000. (650) 604–5104; Fax (650) 604–2767.
Robert M. Padilla, Chief Patent Counsel, Office of Chief Counsel, NASA Ames Research Center, Mail Stop 202A–4, Moffett Field, CA 94035–1000. (650) 604–5104; Fax (650) 604–2767. Information about other NASA inventions available for licensing can be found online at
Notice.
This notice announces the membership of the National Endowment for the Arts (NEA) Senior Executive Service (SES) Performance Review Board (PRB).
Send comments concerning this notice to: National Endowment for the Arts, 400 7th Street SW., Washington, DC 20506
Craig McCord Sr. by telephone at (202) 682–5473 or by email at
4314(c)(1) through (5) of title 5, U.S.C., requires each agency to establish, in accordance with regulations prescribed by the Office of Personnel Management, one or more SES Performance Review Boards. The Board shall review and evaluate the initial appraisal of a senior executive's performance by the supervisor, along with any response by the senior executive, and make recommendations to the appointing authority relative to the performance of the senior executive.
The following persons have been selected to serve on the Performance Review Board of the National Endowment for the Arts (NEA):
In accordance with the purposes of Sections 29 and 182b of the Atomic Energy Act (42 U.S.C. 2039, 2232b), the Advisory Committee on Reactor Safeguards (ACRS) will hold a meeting on October 7–10, 2015, 11545 Rockville Pike, Rockville, Maryland.
A portion of this meeting may be closed in order to discuss and protect information designated as proprietary pursuant to 5 U.S.C. 552b(c)(4).
A portion of this meeting may be closed in order to discuss and protect information designated as proprietary pursuant to 5 U.S.C. 552b(c)(4).
A portion of this meeting may be closed pursuant to 5 U.S.C. 552b(c)(2) and (6) to discuss organizational and personnel matters that relate solely to internal personnel rules and practices of ACRS, and information the release of which would constitute a clearly unwarranted invasion of personal privacy.
A portion of this meeting may be closed in order to discuss and protect information designated as proprietary pursuant to 5 U.S.C. 552b(c)(4).
A portion of this meeting may be closed in order to discuss and protect information designated as proprietary pursuant to 5 U.S.C. 552b(c)(4).]
Procedures for the conduct of and participation in ACRS meetings were published in the
Thirty-five hard copies of each presentation or handout should be provided 30 minutes before the meeting. In addition, one electronic copy of each presentation should be emailed to the Cognizant ACRS Staff one day before meeting. If an electronic copy cannot be provided within this timeframe, presenters should provide the Cognizant ACRS Staff with a CD containing each presentation at least 30 minutes before the meeting.
In accordance with Subsection 10(d) of Public Law 92–463 and 5 U.S.C. 552b(c), certain portions of the October 7th–10th meeting date may be closed, as specifically noted above. Use of still, motion picture, and television cameras during the meeting may be limited to selected portions of the meeting as determined by the Chairman. Electronic recordings will be permitted only during the open portions of the meeting.
ACRS meeting agendas, meeting transcripts, and letter reports are available through the NRC Public Document Room at
Video teleconferencing service is available for observing open sessions of ACRS meetings. Those wishing to use this service should contact Mr. Theron Brown, ACRS Audio Visual Technician (301–415–8066), between 7:30 a.m. and 3:45 p.m. (ET), at least 10 days before the meeting to ensure the availability of this service. Individuals or organizations requesting this service will be responsible for telephone line charges and for providing the equipment and facilities that they use to establish the video teleconferencing link. The availability of video teleconferencing services is not guaranteed.
For the Nuclear Regulatory Commission.
October 5, 12, 19, 26, November 2, 9, 2015.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of October 5, 2015.
There are no meetings scheduled for the week of October 12, 2015.
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of October 26, 2015.
There are no meetings scheduled for the week of November 2, 2015
There are no meetings scheduled for the week of November 9, 2015
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
Members of the public may request to receive this information electronically.
The ACRS Subcommittee on Future Plant Designs will hold a meeting on October 7, 2015, Room T–2B1, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will discuss sections of the NuScale Design-Specific Review Standard. The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Maitri Banerjee (Telephone 301–415–6973 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, MD. After registering with security, please contact Mr. Theron Brown (Telephone 240–888–9835) to be escorted to the meeting room.
Nuclear Regulatory Commission.
License renewal and record of decision; issuance.
The U.S. Nuclear Regulatory Commission (NRC) has issued renewed facility operating licenses Nos. DPR–77 and DPR–79 to Tennessee Valley Authority, the operator of the Sequoyah Nuclear Plant, Units 1 and 2 (SQN). Renewed facility operating licenses Nos. DPR–77 and DPR–79 authorize operation of SQN by the licensee at reactor core power levels not in excess of 3455 megawatts thermal, in accordance with the provisions of the SQN renewed licenses and technical specifications. In addition, the NRC has prepared a record of decision (ROD) that supports the NRC's decision to renew facility operating licenses Nos. DPR–77 and DPR–79.
The license renewal of facility operating licenses Nos. DPR–77 and DPR–79 were effective on September 28, 2015.
Please refer to Docket ID NRC–2013–0037 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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Emmanuel Sayoc, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555; telephone: 301–415–4084; email:
Notice is hereby given that the NRC has issued renewed facility operating licenses Nos. DPR–77 and DPR–79 to Tennessee Valley Authority, the operator of SQN. Renewed facility operating licenses Nos. DPR–77 and DPR–79 authorize operation of SQN by the licensee at reactor core power levels not in excess of 3455 megawatts thermal, in accordance with the provisions of the SQN renewed licenses and technical specifications. The NRC's ROD that supports the NRC's decision to renew facility operating licenses Nos. DPR–77 and DPR–79 is available in ADAMS under Accession No. ML15104A689. As discussed in the ROD and the final supplemental environmental impact statement (FSEIS) for SQN, Supplement
SQN is a dual pressurized water reactor nuclear steam supply system, with four coolant loops for each unit, and located approximately 9.5 miles northeast of Chattanooga, Tennessee. The application for the renewed license, “Sequoyah Nuclear Plant, Units 1 and 2, License Renewal Application,” dated January 7, 2013 (ADAMS Accession No. ML130240007), as supplemented by letters dated through August 17, 2015, complied with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the NRC's regulations. As required by the Act and the NRC's regulations in Chapter 1 of Title 10 of the
For further details with respect to this action, see: (1) Tennessee Valley Authority license renewal application for Sequoyah Nuclear Plant, Units 1 and 2, dated January 7, 2013, as supplemented by letters dated through August 17, 2017; (2) the NRC's safety evaluation report published in January 2015 (ADAMS Accession No. ML15021A356); (3) the NRC's final environmental impact statement (NUREG–1437, Supplement 53) for Sequoyah Nuclear Plant, Units 1 and 2, published in March 2015; and (4) the NRC's ROD.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Director's decision; issuance.
The U.S. Nuclear Regulatory Commission (NRC) has issued a director's decision with regard to a petition dated July 18, 2014, as supplemented on September 3, 2014, filed by Mr. Thomas Saporito (the petitioner), requesting that the NRC take action with regard to Turkey Point Nuclear Generating, Units 3 and 4. The petitioner's requests and the director's decision are included in the
Please refer to Docket ID NRC–2015–0011 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
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Notice is hereby given that the Director, Office of Nuclear Reactor Regulation, NRC has issued Director's Decision DD–15–10 (ADAMS Accession No. ML15237A181) for a petition filed by Mr. Thomas Saporito (the petitioner) on July 18, 2014, as supplemented on September 3, 2014 (ADAMS Package Accession No. ML14202A521).
The petitioner requested that the NRC take enforcement action against Florida Power & Light Company (the licensee) regarding the Turkey Point Nuclear Generating, Units 3 and 4. Specifically, the petitioner requested that the NRC suspend or revoke the licenses for Turkey Point, issue a violation with a civil penalty of $1 million, and issue a confirmatory order that the plant stays in a cold shutdown mode until the licensee completes (1) an independent assessment (through a contractor) to assess, fully understand, and correct the root cause of the rise in ultimate heat sink (UHS) temperature; (2) a comprehensive evaluation of all nuclear safety-related equipment and components that may have been affected; and (3) an independent evaluation of all nuclear safety-related equipment and components that may have been affected.
On September 3, 2015, the petitioner addressed the NRC's Petition Review Board by teleconference. The meeting provided the petitioner an opportunity to provide additional information and to clarify issues cited in the petition. The transcript for that meeting is available in ADAMS under Accession No. ML14266A123.
The NRC reviewed the petition, its supplements, and the transcripts from the meeting on September 3, 2014, and referred the request to the Director of the Office of Nuclear Reactor Regulation. By letter dated January 30, 2015 (ADAMS Accession No. ML14349A597), the Deputy Director determined that the petitioner's request that the NRC take enforcement action until the licensee completes an independent root cause assessment for the rise in UHS temperature met the criteria for review under the petition process. The Deputy Director determined that the other requests in the petition did not meet the criteria for review under the petition process.
By letters to the petitioner and licensee dated July 27, 2015 (ADAMS Accession Nos. ML15162B048 and ML15162B050, respectively), the NRC issued the proposed director's decision (ADAMS Accession No. ML15162B053) for comment. The petitioner and the licensee were asked to provide comments within 15 days on any part of the proposed director's decision that was considered to be erroneous or any issues in the petition that were not addressed. Comments were received from the petitioner by electronic mail dated August 5, 2015, and August 12,
The Director of the Office of Nuclear Reactor Regulation has denied the petitioner's request that the NRC take enforcement action until the licensee completes an independent root
cause assessment for the rise in UHS temperature. The reasons for this decision are explained in Director's Decision DD–15–10 pursuant to Section 2.206 of Title 10 of the
The NRC will file a copy of the director's decision with the Secretary of the Commission for the Commission's review in accordance with 10 CFR 2.206. As provided by this regulation, the director's decision will constitute the final action of the Commission 25 days after the date of the decision unless the Commission, on its own motion, institutes a review of the director's decision in that time.
For the Nuclear Regulatory Commission.
The ACRS Subcommittee on Planning and Procedures will hold a meeting on October 7, 2015, Room T–2B3, 11545 Rockville Pike, Rockville, Maryland.
The meeting will be open to public attendance with the exception of a portion that may be closed pursuant to 5 U.S.C. 552b(c)(2) and (6) to discuss organizational and personnel matters that relate solely to the internal personnel rules and practices of the ACRS, and information the release of which would constitute a clearly unwarranted invasion of personal privacy.
The agenda for the subject meeting shall be as follows:
The Subcommittee will discuss proposed ACRS activities and related matters. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Quynh Nguyen (Telephone 301–415–5844 or Email:
Information regarding changes to the agenda, whether the meeting has been canceled or rescheduled, and the time allotted to present oral statements can be obtained by contacting the identified DFO. Moreover, in view of the possibility that the schedule for ACRS meetings may be adjusted by the Chairman as necessary to facilitate the conduct of the meeting, persons planning to attend should check with the DFO if such rescheduling would result in a major inconvenience.
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, MD. After registering with security, please contact Mr. Theron Brown (240–888–9835) to be escorted to the meeting room.
The ACRS Subcommittee on Fukushima will hold a meeting on October 6, 2015, Room T–2B1, 11545 Rockville Pike, Rockville, Maryland 20852.
The meeting will be open to public attendance.
The agenda for the subject meeting shall be as follows:
The Subcommittee will review and discuss the NRC staff's plans to resolve and close the remaining open Tier 2 and 3 recommendations developed in response to the March 11, 2011 accident at the Fukushima Dai-chi nuclear power plant. The Subcommittee will hear presentations by and hold discussions with the NRC staff and other interested persons regarding this matter. The Subcommittee will gather information, analyze relevant issues and facts, and formulate proposed positions and actions, as appropriate, for deliberation by the Full Committee.
Members of the public desiring to provide oral statements and/or written comments should notify the Designated Federal Official (DFO), Kathy Weaver (Telephone: 301–415–6236 or Email:
Detailed meeting agendas and meeting transcripts are available on the NRC Web site at
If attending this meeting, please enter through the One White Flint North building, 11555 Rockville Pike, Rockville, Maryland 20852. After registering with Security, please contact Mr. Theron Brown (Telephone: 240–888–9835) to be escorted to the meeting room.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend the pilot period for the Exchange's Retail Liquidity Program (the “Retail Liquidity Program” or the “Program”), which is currently scheduled to expire on September 30, 2015, until March 31, 2016. 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 purpose of this filing is to extend the pilot period of the Retail Liquidity Program, currently scheduled to expire on September 30, 2015, until March 31, 2016.
In December 2013, the Commission approved the Retail Liquidity Program on a pilot basis.
The Retail Liquidity Program was approved by the Commission on a pilot basis. Pursuant to NYSE Arca Equities Rule 7.44(m), the pilot period for the Program was originally scheduled to end twelve months after the date of implementation. Because the Program was implemented on April 14, 2014, the first pilot period for the Program ended on April 14, 2015 and the Exchange extended the pilot period to September 30, 2015.
The Exchange established the Retail Liquidity Program in an attempt to attract retail order flow to the Exchange by potentially providing price improvement to such order flow. The Exchange believes that the Program promotes competition for retail order flow by allowing Exchange members to submit RPIs to interact with Retail Orders. Such competition has the ability to promote efficiency by facilitating the price discovery process and generating additional investor interest in trading securities, thereby promoting capital formation. The Exchange believes that extending the pilot is appropriate because it will allow the Exchange and the Commission additional time to analyze data regarding the Program that the Exchange has committed to provide.
The proposed rule change is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change simply extends an established pilot program for an additional six months, thus allowing the Retail Liquidity Program to enhance competition for retail order flow and contribute to the public price discovery process.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change 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) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend the pilot period for the Exchange's Retail Liquidity Program (the “Retail Liquidity Program” or the “Program”), which is currently scheduled to expire on September 30, 2015, until March 31, 2016. 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 purpose of this filing is to extend the pilot period of the Retail Liquidity Program,
In July 2012, the Commission approved the Retail Liquidity Program on a pilot basis.
The Retail Liquidity Program was approved by the Commission on a pilot basis. Pursuant to NYSE MKT Rule 107C(m)—Equities, the pilot period for the Program is scheduled to end on September 30, 2015.
The Exchange established the Retail Liquidity Program in an attempt to attract retail order flow to the Exchange by potentially providing price improvement to such order flow. The Exchange believes that the Program promotes competition for retail order flow by allowing Exchange members to submit RPIs to interact with Retail Orders. Such competition has the ability to promote efficiency by facilitating the price discovery process and generating additional investor interest in trading securities, thereby promoting capital formation. The Exchange believes that extending the pilot is appropriate because it will allow the Exchange and the Commission additional time to analyze data regarding the Program that the Exchange has committed to provide.
The proposed rule change is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change simply extends an established pilot program for an additional six months, thus allowing the Retail Liquidity Program to enhance competition for retail order flow and
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change 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.
On June 12, 2015, New York Stock Exchange LLC (“NYSE” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1)
NYSE proposes to: (i) Amend the Exchange's Operating Agreement to establish a Regulatory Oversight Committee (“ROC”) as a committee of the Exchange's Board of Directors (“Board”) and make conforming amendments to Exchange Rules 1, 46, 46A, and 497; (ii) terminate the Delegation Agreement (“Delegation Agreement”) among the Exchange, NYSE Market (DE), Inc. (“NYSE Market (DE)”), and NYSE Regulation, Inc. (“NYSE Regulation”), delete Exchange Rule 20, which sets forth the terms of the delegation, and make conforming amendments to Section 4.05 of the Operating Agreement and Exchange Rules 0, 1, 22, 36, 37, 46, 48, 49, 54, 70, 103, 103A, 103B, 104, 422 476A, and 497; (iii) remove from the Exchange Rules certain organizational documents of NYSE Market (DE) and NYSE Regulation in connection with the proposed termination of the Delegation Agreement; (iv) amend the Operating Agreement to establish a Director Candidate Recommendation Committee (“DCRC”) as a committee of the Board and set forth the process by which Non-Affiliated Director Candidates are named to the new DCRC; (v) amend the Operating Agreement to establish a Committee for Review (“CFR”) as a subcommittee of the ROC and make conforming changes to Exchange Rules 308, 475, 476, 476A, and 9310; and (vi) replace references to the Chief Executive Officer of NYSE Regulation in Exchange Rules 48, 49, and 89 with references to the Chief Regulatory Officer of the Exchange.
The Exchange proposes to add subsection (ii) to Section 2.03(h) of the Operating Agreement to establish a ROC and to delineate its composition and functions. The Exchange states that new Section 2.03(h)(ii) of the Operating Agreement would be substantially similar to the recently approved changes by the Exchange's affiliates, NYSE Arca, Inc. (“NYSE Arca”) and NYSE MKT LLC (“NYSE MKT”), to establish ROCs,
• Oversee the Exchange's regulatory and self-regulatory organization responsibilities and evaluate the adequacy and effectiveness of the Exchange's regulatory and self-regulatory organization responsibilities;
• assess the Exchange's regulatory performance; and
• advise and make recommendations to the Board or other committees of the Board about the Exchange's regulatory compliance, effectiveness and plans.
In furtherance of these functions, the Exchange proposes that the ROC shall have the authority and obligation to: (i) Review the regulatory budget of the Exchange and specifically inquire into the adequacy of resources available in the budget for regulatory activities; (ii) meet regularly with the Chief Regulatory Officer (“CRO”) in executive session; (iii) in consultation with the Exchange's Chief Executive Officer, establish the goals, assess the performance, and recommend the CRO's compensation; and (iv) keep the Board informed with respect to the foregoing matters.
With respect to the ROC's composition, Section 2.03(h)(ii) would provide that the ROC shall consist of at least three members, each of whom shall be a Director of the Exchange who satisfies the independence requirements of the Exchange.
In addition, Section 2.03(h)(ii) of the Operating Agreement would provide that the Board, on affirmative vote of a majority of Directors, at any time may remove a member of the ROC for cause, and also would provide that a failure of the ROC member to qualify as independent under the Company Director Independence Policy would constitute a basis to remove a member of the ROC for cause. If the term of office of a ROC member terminates, and the remaining term of office of such member at the time of termination is not more than three months, Section 2.03(h)(ii) would provide that during the period of vacancy, the ROC would not be deemed to be in violation of its compositional requirements by virtue of the vacancy. To clarify the process for filling vacancies on any committee of the Exchange, including the ROC, the Exchange also proposes to amend Section 2.03(h) of the Operating Agreement to provide that vacancies in the membership of any committee shall be filled by the Board. The Exchange believes that the proposed rule change creating an independent Board committee to oversee the adequacy and effectiveness of the performance of its self-regulatory responsibilities is consistent with previously approved rule changes for other SROs and would enable the Exchange to undertake its regulatory responsibilities under a corporate governance structure that is consistent with its industry peers.
The Exchange also proposes to make conforming amendments to Exchange Rules 1, 46, 46A and 497 by replacing references to “Board of Directors of NYSER” and “NYSE Regulation Board of Directors” with references to the ROC.
The Exchange proposes to terminate the Delegation Agreement and delete Exchange Rule 20, which sets forth the delegation of the Exchange's regulatory functions to NYSE Regulation and the Exchange's market functions to NYSE Market (DE),
With the termination of the Delegation Agreement, the Exchange proposes to re-integrate its regulatory and market functions.
The Exchange proposes to functionally separate its regulatory functions from its business lines.
The Exchange proposes to make certain conforming amendments to its Rules to reflect the termination of the Delegation Agreement and the re-integration of its regulatory and market operations. As further described in the Notice,
With the termination of the Delegation Agreement, NYSE Regulation and NYSE Market (DE) no longer would be performing the Exchange's regulatory and market functions, respectively. According to the Exchange, the previously filed constituent documents of NYSE Regulation and NYSE Market (DE) therefore no longer would constitute “rules of [the] exchange” under Section 3(a)(27) of the Act.
• Restated Certificate of Incorporation of NYSE Regulation, Inc.;
• Seventh Amended and Restated Bylaws of NYSE Regulation, Inc.;
• Independence Policy of NYSE Regulation, Inc.;
• Third Amended and Restated Certificate of Incorporation of NYSE Market (DE), Inc.;
• Fourth Amended and Restated Bylaws of NYSE Market (DE), Inc.; and
• Independence Policy of NYSE Market (DE), Inc.
Section 2.03(a)(iii) of the Operating Agreement provides that Non-Affiliated Director Candidates (also known as “Fair Representation Candidates”) are nominated by the nominating and governance committee (“NGC”) of the Intercontinental Exchange, Inc. (“ICE”) Board of Directors, which must designate as Non-Affiliated Director Candidates the candidates recommended jointly by the NYSE Market (DE) DCRC and the NYSE Regulation DCRC. Section 2.03(a)(iv) of the Operating Agreement describes the process whereby member organizations can nominate alternate candidates to those candidates selected by the NYSE Market (DE) DCRC and the NYSE Regulation DCRC.
The Exchange proposes to establish a NYSE DCRC as a committee of the Board by adding new subsection (h)(i) to Section 2.03 of the Operating Agreement, and making conforming changes to Section 2.03(a)(iii) and Section 2.03(a)(iv) by substituting the proposed NYSE DCRC for the NYSE Market (DE) DCRC and NYSE Regulation DCRC in the nominating process for Non-Affiliated Director Candidates. The Exchange states that, once the Delegation Agreement is terminated, neither the NYSE Market (DE) DCRC nor the NYSE Regulation DCRC should have a role in the nomination of Non-Affiliated Director Candidates process, as the Exchange no longer would be delegating any market or regulatory responsibilities to either entity.
Proposed Section 2.03(h)(i) of the Operating Agreement provides that the Board would appoint the members of the NYSE DCRC on an annual basis and that the NYSE DCRC would be responsible for recommending Non-Affiliated Director Candidates to the ICE NGC. Proposed Section 2.03(h)(i) also sets forth the compositional requirements for the NYSE DCRC.
• Engages in a business involving substantial direct contact with securities customers;
• is registered as a Designated Market Maker (“DMM”) and spends a substantial part of their time on the trading floor; and
• spends a majority of their time on the trading floor of the Exchange and has as a substantial part of their business the execution of transactions on the trading floor of the Exchange for other than their own account or the account of his or her Member Organization, but is not registered as a DMM.
As proposed, Section 2.03(h)(i) would provide that the Board appoint such individuals after appropriate consultation with representatives of member organizations. Furthermore, the Exchange proposes to replace references to “NYSE Market DCRC” and “NYSE Regulation DCRC” with “NYSE DCRC” in Section 2.03(a)(iii) and Section 2.03(a)(iv) of the Operating Agreement.
According to the Exchange, one benefit of the proposed rule change is that the Exchange's process for selecting Non-Affiliated Director Candidates would be harmonized with a similar process in place at NYSE MKT, an affiliate of the Exchange.
The Exchange proposes to establish a Committee for Review (“CFR”) as a subcommittee of the ROC by adding a new subsection (h)(iii) to Section 2.03 of the Operating Agreement and to make conforming changes to Exchange Rules 308, 475, 476, 476A, and 9310.
The proposed CFR would be responsible for reviewing the disciplinary decisions on behalf of the Board and reviewing determinations to limit or prohibit the continued listing of an issuer's securities on the Exchange.
According to the Exchange, member participation on the proposed CFR would be sufficient to provide for the fair representation of members in the administration of the affairs of the Exchange, including rulemaking and the disciplinary process, consistent with Section 6(b)(3) of the Act.
Finally, the Exchange proposes to make conforming amendments to Exchange Rules 308, 475, 476, 476A and 9310 by generally replacing references to the current NYSE Regulation CFR with references to the “Committee for Review.”
The Exchange also proposes to amend Exchange Rule 48 (Exemptive Relief—Extreme Market Volatility Condition), Exchange Rule 49 (Emergency Powers) and Exchange Rule 86 (NYSE BondsSM) by replacing references to the Chief Executive Officer of NYSE Regulation with references to the CRO of the Exchange.
Exchange Rule 48 currently provides that, for purposes of the rule, a “qualified Exchange officer” means the Chief Executive Officer of ICE, or his or her designee, or the Chief Executive Officer of NYSE Regulation, or his or her designee. Exchange Rule 48 provides that the Exchange can invoke an extreme market volatility condition at the open (or reopen of trading following a market-wide halt of securities) during which time the Exchange could suspend Exchange Rules 15, 79A.30, and 123D(1) regarding obtaining certain prior Floor Official approvals and requirements for mandatory indications. Exchange Rule 49 addresses the Exchange's emergency powers and defines the term “qualified Exchange officer” as,
The Exchange notes that “Chief Executive Officer” of NYSE Regulation is used in these three rules but CRO is used throughout the Exchange's rules to designate the same person.
As noted above, the Commission received one comment letter on the proposed rule change.
The commenter offers a number of suggested revisions to the proposed rule change that in his view would strengthen the independence of the Exchange's regulatory function: The Board should consist entirely of independent directors, other than the Chief Executive Officer, and should not include any holding company directors or directors of affiliates; the ROC should consist entirely of independent directors; the ROC should have greater substantive authority over its budget and other critical functions and should have greater authority with respect to the CRO and the CRO's compensation; CFR membership should be limited to members of the ROC and persons appointed by the ROC; and the provision regarding removal of a director “for cause” should be defined so as to restrict the Board from easily changing the ROC's membership.
The Exchange submitted a letter responding to the commenter's letter.
The Exchange also addresses the commenter's suggested revisions to the Exchange's proposal. As an initial matter, the Exchange states that the commenter “has not provided any credible reason why the current structure should remain or why the Exchange's Proposal is not consistent with the requirements of the Act.”
After careful review, 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.
As noted above, the commenter expresses the concern that the Exchange's proposal would not ensure sufficient insulation of the Exchange's regulatory function from the commercial interests of its holding company.
As a preliminary matter, the Commission notes that several concerns raised by the commenter relate to the fact that the Exchange is part of a holding company structure. In that regard, the commenter suggests that the replacement of NYSE Regulation with the ROC would not provide sufficient insulation of the Exchange's regulatory functions from the commercial interests of the holding company.
The commenter expresses the view that the ROC would not have sufficient substantive authority over the
The commenter also raises a concern about the proposed functional separation, rather than the existing structural separation, between the Exchange's regulatory and market functions that would result from the Exchange's proposal to terminate the Delegation Agreement and delete Exchange Rule 20.
The commenter further states that the CFR would not effectively insulate the disciplinary review process from the possibility of commercial influences and expresses concern about the composition of the CFR.
The Commission believes that the Exchange's proposal to create the NYSE DCRC as a committee of the Board that would recommend to the ICE NGC the Non-Affiliated Director candidates to serve on the Board, in place of the NYSE Regulation DCRC and the NYSE Market DCRC, provides an appropriate process for the nomination of Exchange members to serve on the Board. The Commission believes that the composition of the NYSE DCRC, along with the provision in the Operating Agreement that would allow members to directly nominate Non-Affiliated Director candidates through a petition process,
Finally, the Commission believes that it is consistent with the Act for the Exchange to make conforming revisions to various Exchange Rules to reflect the proposed changes to its governance structure. In this regard, the Commission believes that it is appropriate for the Exchange to delete the organizational documents of NYSE Regulation and NYSE Market (DE) and to replace references to the Chief Executive Officer of NYSE Regulation with references to the CRO in Exchange Rules 48, 49, and 86.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to extend the pilot period for the Exchange's Retail Liquidity Program (the “Retail Liquidity Program” or the “Program”), which is currently scheduled to expire on September 30, 2015, until March 31, 2016. 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 purpose of this filing is to extend the pilot period of the Retail Liquidity Program,
In July 2012, the Commission approved the Retail Liquidity Program on a pilot basis.
The Retail Liquidity Program was approved by the Commission on a pilot basis. Pursuant to NYSE Rule 107C(m), the pilot period for the Program is scheduled to end on September 30, 2015.
The Exchange established the Retail Liquidity Program in an attempt to attract retail order flow to the Exchange by potentially providing price improvement to such order flow. The Exchange believes that the Program promotes competition for retail order flow by allowing Exchange members to submit RPIs to interact with Retail Orders. Such competition has the ability to promote efficiency by facilitating the price discovery process and generating additional investor interest in trading securities, thereby promoting capital formation. The Exchange believes that extending the pilot is appropriate because it will allow the Exchange and the Commission additional time to analyze data regarding the Program that the Exchange has committed to provide.
The proposed rule change is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change simply extends an established pilot program for an additional six months, thus allowing the Retail Liquidity Program to enhance
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b–4(f)(6)
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change 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.
The Office of the Assistant Legal Adviser for Private International Law, Department of State, gives notice of a public meeting to discuss a Working Paper prepared by the Secretariat of the United Nations Commission on International Trade Law (UNCITRAL). The public meeting will take place on Tuesday, October 27, 2015 from 10 a.m. until 12 p.m. EDT. This is not a meeting of the full Advisory Committee.
The UNCITRAL Secretariat has revised draft provisions on electronic transferable records, which are presented for in the form of a model law, for discussion during the next meeting of UNCITRAL's Working Group IV, which will meet November 9–13, 2015. The Working Paper, which is numbered WP.135 and includes WP.135/Add.1, is available at
The purpose of the public meeting is to obtain the views of concerned stakeholders on the topics addressed in the Working Paper in advance of the meeting of Working Group IV. Those who cannot attend but wish to comment are welcome to do so by email to Michael Coffee at
Data from the public is requested pursuant to Public Law 99–399 (Omnibus Diplomatic Security and Antiterrorism Act of 1986), as amended; Public Law 107–56 (USA PATRIOT Act); and Executive Order 13356. The purpose of the collection is to validate the identity of individuals who enter Department facilities.
The data will be entered into the Visitor Access Control System (VACS–D) database. Please see the Security Records System of Records Notice (State-36) at
Federal Aviation Administration (FAA), DOT.
Notice.
This notice contains a summary of a petition seeking relief from specified requirements of Title 14 of the Code of Federal Regulations. The purpose of this notice is to improve the public's awareness of, and participation in, the FAA's exemption process. Neither publication of this notice nor the inclusion or omission of information in the summary is intended to affect the legal status of the petition or its final disposition.
Comments on this petition must identify the petition docket number and must be received on or before October 22, 2015.
Send comments identified by docket number FAA–2015–2336 using any of the following methods:
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Dan Ngo, (202) 267–4264. 800 Independence Avenue SW., Washington, DC 20591.
This notice is published pursuant to 14 CFR 11.85.
Federal Aviation Administration (FAA), DOT.
Request for Public Comments.
Under the provisions of Title 49, U.S.C. Section 47153(d), notice is being given that the FAA is considering a request from the Midcoast Regional Redevelopment Authority in Brunswick ME to waive the surplus property requirements for approximately 12.07 acres of airport property located at Brunswick Executive Airport in Brunswick, ME. The subject parcel is currently undeveloped and has been identified for commercial development on the current Airport Layout Plan. The airport will retain the land to generate long term lease revenue for the airport and thus, is requesting a release to change the property from aeronautical use to non-aeronautical use. It has been determined through study and master planning that the subject parcel will not be needed for aeronautical purposes is not contiguous to the airport proper. Full and permanent relief of the surplus property requirements on this parcel
Comments must be received on or before November 2, 2015.
You may send comments using any of the following methods:
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Interested persons may inspect the request and supporting documents by contacting the FAA at the address listed under
Mr. Jorge E. Panteli, Compliance and Land Use Specialist, Federal Aviation Administration New England Region Airports Division, 12 New England Executive Park, Burlington, Massachusetts, Telephone 781–238–7618.
Federal Aviation Administration, DOT.
Notice of Land-Use Change Application to Amend Grant Agreement Obligations.
The Federal Aviation Administration (FAA) proposes to rule and invites public comment on the application for a land-use change authorization effecting approximately 12.2 acres of airport property at the Elko Regional Airport, Elko, Nevada which will provide for an amendment of the Grant Agreement Assurance obligation that requires use of airport land for aeronautical purposes. Since the City of Elko, sponsor of the Elko Regional Airport, acquired the land in 1930, the property does not have an aeronautical purpose or planned to be used for an aeronautical purpose. The land-use change will authorize the release of the aeronautical-use obligation from the Grant Assurance Agreement for a proposed long term non-aeronautical commercial development. The 12.2 acres of airport land is identified as “future commercial” on the FAA conditionally approved Airport Layout Plan (ALP). The approximately 12.2 acres of airport property is currently zoned as “light industrial business park” and the land is proposed for retail mall development. The proposed developer will pay the costs to develop, manage, and improve the property for non-aeronautical commercial businesses. The City of Elko will lease the land at fair market value (FMV) to earn revenue for the airport thereby benefiting the airport and serving the interest of civil aviation. The proposed use will be compatible with the airport and will not interfere with the airport or its operation.
Comments must be received on or before November 2, 2015.
Comments on the request may be mailed or delivered to the FAA at the following address Mike N. Williams, Manager, Federal Aviation Administration, Phoenix Airports District Office,
In accordance with the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century (AIR 21), Public Law 106–181 (Apr. 5, 2000; 114 Stat. 61), this notice must be published in the
The following is a brief overview of the request:
The City of Elko, Nevada, owner of the Elko Regional Airport, requested the Federal Aviation Administration to authorize a land-use change on approximately 12.2 acres of airport land at the Elko Regional Airport. The land-use change authorization will amend the Grant Agreement Assurance obligations that require the use of the 12.2 acres of airport land for aviation purposes to allow for long term non-aeronautical use for revenue generating purposes. The City of Elko has owned this portion of land in fee simple since 1930 and was acquired for the airport without any use of federal funding or for noise abatement purposes. The land has been cleared and graded many years ago with no additional encumbrances. With the exception of a portion of the subject land being used for unsecured equipment storage by the Nevada Department of Transportation, the land is vacant and unimproved and has not been used for aeronautical purposes since the parcel of land was acquired. The City of Elko has intended the property for non-aeronautical development because the adjacent topography has made the land unsuitable for most aeronautical use. The parcels of land are located northeast of the secondary runway area, outside of the airport fence line adjacent to Taxiway B and Nevada State Highway 225 (Mountain City Highway).
The City of Elko has determined the fair market value of the land and will ensure the FMV rental income will be devoted to airport maintenance, operations and capital projects which will benefit the airport. The reuse of the property will not interfere with the airport or its operation; thereby, serve the interests of civil aviation.
Federal Aviation Administration (FAA), DOT.
Request for Public Comments.
Under the provisions of Title 49, U.S.C. Section 47153(d), notice is being given that the FAA is considering a request from Manchester-Boston Regional Airport in Manchester, NH to waive the surplus property requirements for approximately 16.90 acres of airport property located at
The subject parcel is currently undeveloped and has been identified for commercial development on the current Airport Layout Plan. The airport will retain the land to generate a long term lease revenue for the airport and thus, is requesting a release to change the property from aeronautical use to non-aeronautical use. It has been determined through study and master planning that the subject parcel will not be needed for aeronautical purposes is not contiguous to the airport proper. Full and permanent relief of the surplus property requirements on this parcel will allow the airport to generate long term revenue through lease of the land. All lease revenue will continue to be subject to the FAAs revenue-use policy and dedicated to the maintenance and operation of the Manchester-Boston Regional Airport.
Comments must be received on or before November 2, 2015.
You may send comments using any of the following methods:
• Federal eRulemaking Portal: Go to
• Fax: 202–493–2251
• Mail: U.S. Department of Transportation, Docket Operations, M–30, West Building Ground Floor, Room W 12–140, 1200 New Jersey Avenue SE., Washington, DC 20590
• Hand Delivery: Deliver to mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.
Interested persons may inspect the request and supporting documents by contacting the FAA at the address listed under
Mr. Jorge E. Panteli, Compliance and Land Use Specialist, Federal Aviation Administration New England Region Airports Division, 12 New England Executive Park, Burlington, Massachusetts, Telephone 781–238–7618.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition; grant of application for exemption.
FMCSA announces its decision to grant the R&R Transportation Group (R&R) an exemption from the minimum 30-minute rest break requirement of the Agency's hours-of-service (HOS) regulations for commercial motor vehicle (CMV) drivers. FMCSA has analyzed the exemption application and the public comments and has determined that the exemption, subject to the terms and conditions imposed, will achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption. The exemption is available only to R&R's drivers engaged in the transportation of materials that by their nature must be attended, such as radioactive materials, pharmaceuticals, and ammunition. The exemption provides these drivers the same regulatory flexibility that the HOS regulations allow drivers transporting explosives,
The exemption is effective October 2, 2015 and expires on October 2, 2017.
Mr. Robert Schultz, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards, FMCSA; Telephone: 202–366–4325. Email:
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from certain parts of the Federal Motor Carrier Safety Regulations. FMCSA must publish a notice of each exemption request in the
The Agency reviews safety analyses and public comments submitted, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
On December 27, 2011, FMCSA published a final rule amending the HOS regulations (49 CFR part 395) for drivers of CMVs (76 FR 81133). The final rule included a new provision requiring certain drivers to take a rest break during their duty day. Specifically, the rule states that “driving is not permitted if more than 8 hours have passed since the end of the driver's last off-duty or sleeper-berth period of at least 30 minutes” [49 CFR 395.3(a)(3)(ii)]. This provision took effect on July 1, 2013.
Under the HOS rules, a driver is on duty if he or she is “performing any other work in the capacity, employ, or service of a motor carrier” (§ 395.2). A driver is off duty when relieved of all duty and responsibility for the care and custody of the vehicle, its accessories, and any cargo it may be carrying. However, the Agency has recognized that under certain circumstances it is unsafe for CMVs to be left unattended so that the driver can take 30 minutes off duty. By regulation, FMCSA allows operators of CMVs transporting certain explosives to satisfy the rest-break requirement by using 30 minutes or more of on-duty attendance time providing they perform no other work during the break [49 CFR 395.1(q)]. Drivers employing this provision are required to annotate their duty-status record to indicate that they have used the exception.
The Agency has granted temporary exemptions of the type provided by 49 CFR 395.1(q) to drivers transporting security-sensitive radioactive materials (78 FR 32700, May 31, 2013), weapons, munitions, and sensitive/classified cargo (80 FR 20556, April 16, 2015), and oversize/overweight (OS/OW) loads (80 FR 34957, June 18, 2015).
R&R operates three for-hire motor carriers that transport property in interstate commerce: R & R Trucking, Inc., USDOT 382936; TNI USA Inc. NC dba AATCO, USDOT 513601; and NEI Transport, LLC, USDOT 676270. R&R indicates that these three entities operate 255 power units and that approximately 290 drivers would be covered by the exemption. R&R's application for exemption states that the goods it transports are of such a nature or value that its drivers must keep the CMV under constant observation to prevent theft or an adverse security incident. The application provides examples of the goods transported by R&R CMVs: weapons, ammunition, night-vision goggles, pharmaceuticals, and radioactive materials. R&R maintains constant attendance of such loads in order to protect the public from a major security or hazardous material event. R&R states that Federal contracts often require CMV drivers to maintain constant surveillance of the vehicle, and may require the driver of an escort CMV to maintain constant surveillance as well. In addition, R&R states that the U.S. Department of Homeland Security may require surveillance as part of a security alert posted in the National Terrorism Advisory System, and that some Federal agencies, in response to a threat, establish a security threat zone, or geo-fence, restricting or barring further movement of an R&R CMV. R&R states that the Department of Defense provides documentation to CMV drivers to alert roadside inspectors of surveillance requirements.
R&R requested an exemption from the HOS regulation pertaining to rest breaks [49 CFR 395.3(a)(3)(ii)] to allow R&R drivers providing surveillance services to be treated the same as CMV drivers attending explosives under § 395.1(q). R&R believes that transportation under the requested exemption would achieve a level of safety and security that is at least equivalent to what would be obtained by following the normal break requirements in § 395.3(a)(3)(ii). R&R states that it will restrict its drivers of such CMVs from performing any other on-duty functions while satisfying the 30-minute break requirement. R&R states that it will require its drivers to annotate their records of duty status to indicate on-duty periods used to satisfy the rest-break requirement in accordance with § 395.1(q).
It should be noted that there is no motive for a driver or carrier to claim this exemption when not entitled to it. A driver who is not required constantly to attend his or her vehicle must take the minimum 30-minute rest break as off-duty time, which does not count against the driving window of 60 hours on duty in 7 days or 70 hours in 8 days. A driver claiming this exemption unnecessarily would be required to take the same rest breaks, but would be on-duty and the time would count against the 60- or 70-hour limit.
On July 13, 2015, FMCSA published notice of this application, and asked for public comment (80 FR 40120). No comments were received to the docket.
FMCSA has evaluated R&R's application for exemption. The Agency believes that R&R's carriers will likely achieve a level of safety that is equivalent to, or greater than, the level of safety achieved without the exemption [49 CFR 381.305(a)], and therefore grants this exemption, subject to the terms and conditions outlined below.
1. Drivers of R & R Trucking, Inc., USDOT 382936; TNI USA Inc. NC dba AATCO, USDOT 513601; and NEI Transport, LLC, USDOT 676270, who are transporting materials that by their nature must be attended, such as radioactive materials, pharmaceuticals, and ammunition, are exempt from the requirement for a 30-minute rest break in § 395.3(a)(3)(ii). Drivers of loads not moving in interstate commerce are not eligible for this exemption.
2. Drivers must have a copy of this exemption document in their possession while operating under the terms of the exemption and present it to law enforcement officials upon request.
3. The motor carriers operating under this exemption must maintain a “Satisfactory” safety rating with FMCSA, or be “Unrated.” Motor carriers with “Conditional” or “Unsatisfactory” FMCSA safety ratings are prohibited from using this exemption.
4. The motor carriers operating under this exemption must maintain Safety Measurement System (SMS) scores below FMCSA's intervention thresholds, as displayed at
This exemption from the requirements of 49 CFR 395.3(a)(3)(ii) is granted for the period from 12:01 a.m., October 2, 2015 through 11:59 p.m., October 2, 2017.
This exemption is limited to the provisions of 49 CFR 395.3(a)(3)(ii). These drivers must comply with all other applicable provisions of the FMCSRs.
In accordance with 49 U.S.C. 31313(d), as implemented by 49 CFR 381.600, during the period this exemption is in effect, no State shall enforce any law or regulation applicable to interstate commerce that conflicts with or is inconsistent with this exemption with respect to a firm or person operating under the exemption. States may, but are not required to, adopt the same exemption with respect to operations in intrastate commerce.
Any motor carrier utilizing this exemption must notify FMCSA within 5 business days of any accident (as defined in 49 CFR 390.5), involving any of the motor carrier's CMV drivers operating under the terms of this exemption. The notification must be emailed to
a. Identification of Exemption: “R&R,”
b. Name of operating motor carrier and USDOT number,
c. Date of the accident,
d. City or town, and State, in which the accident occurred, or closest to the accident scene,
e. Driver's name and license number and State of issuance,
f. Vehicle number and State license plate number,
g. Number of individuals suffering physical injury,
h. Number of fatalities,
i. The police-reported cause of the accident,
j. Whether the driver was cited for violation of any traffic laws or motor carrier safety regulations, and
k. The driver's total driving time and total on-duty time period prior to the accident.
FMCSA believes the motor carriers engaged in these operations will continue to maintain their previous safety record while operating under this exemption. However, should problems occur, FMCSA will take all steps necessary to protect the public interest, including immediate revocation or restriction of the exemption. The FMCSA will immediately revoke or restrict the exemption for failure to comply with its terms and conditions.
In accordance with part 211 of Title 49 Code of Federal Regulations (CFR), this document provides the public notice that by a document dated August 20, 2015, the Twin Cities & Western Railroad (TCWR) has petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR 223.11—
TCWR has petitioned FRA to grant a waiver of compliance from 49 CFR part 223—Safety Glazing Standards, for one locomotive, TCWR 1207, which requires certified glazing in all windows. The subject locomotive is a recent purchase by TCWR. It is an Electro-Motive Diesel (EMD) SW1200 diesel switcher locomotive built by General Motors' EMD Division. Its windows do not have the proper safety glazing as required by 49 CFR part 223. Even though the locomotive is presently used as a switching unit, TCWR wants to equip this unit with ditch lights, an alerter, and other safety features to allow it to be used as a main line unit. As such, the TCWR is requesting a glazing waiver to place this unit into main line service.
TCWR is a Class III rail carrier based in Glencoe, MN. The railroad uses 294 miles of track in Minnesota and another 49 miles of track in South Dakota interchanging with Class I railroads (Canadian Pacific Railway, Union Pacific Railroad, BNSF Railway and Canadian National Railway) in the Twin Cities. TCWR is a key player in the economic health of western Minnesota and eastern South Dakota by moving goods and commodities from production/processing/shipping facilities of more than 50 shippers, 6 days per week, along its line. TCWR personnel have responsibility for day-to-day inspection and maintenance of the railroad track.
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
• Web site:
•
•
•
Communications received by November 16, 2015 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of Petition.
Bridgestone Americas Tire Operations, LLC (BATO), has determined that certain Bridgestone bus tires do not fully comply with paragraph S6.5(e) of Federal Motor Vehicle Safety Standard (FMVSS) No. 119,
The closing date for comments on the petition is November 2, 2015.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited at the beginning of this notice and submitted by any of the following methods:
•
•
•
Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that your comments were
Documents submitted to a docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the Internet at
The petition, supporting materials, and all comments received before the close of business on the closing date indicated below will be filed and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the extent possible. When the petition is granted or denied, notice of the decision will be published in the
I.
This notice of receipt of BATO's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.
II.
III.
IV.
S6.5
(e) The speed restriction of the tire, if 90 km/h (55 mph) or less, shown as follows:
Max speed __km/h (__mph).
V.
BATO also believes that most professional drivers would understand the speed restriction as stated in metric units. Since the subject tires cannot be used in a passenger vehicle application, and will be serviced and driven by professionals who understand the difference between English and metric units; it is unlikely an unqualified driver would mistakenly drive these tires faster than the speed restriction.
BATO notes that they have not received any complaints, claims, or warranty adjustments related to the subject tires and that these tires, meet all other performance requirements of FMVSS No. 119.
BATO has additionally informed NHTSA that it has corrected the noncompliance so that all future production of the subject tires complies with FMVSS No. 119.
In summation, BATO believes that the described noncompliance of the subject tires is inconsequential to motor vehicle safety, and that its petition, to exempt BATO from providing recall notification of noncompliance as required by 49 U.S.C. 30118 and remedying the recall noncompliance as required by 49 U.S.C. 30120 should be granted.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject tires that BATO no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve equipment distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant tires under their control after BATO notified them that the subject noncompliance existed.
(49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8)
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 November 2, 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.
Ryan Paquet, Director, Office of Hazardous Materials Approvals and Permits Division, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, East Building, PHH–30, 1200 New Jersey Avenue Southeast, Washington, DC 20590–0001, (202) 366–4535.
Copies of the applications are available for inspection in the Records Center, East Building, PHH–30, 1200 New Jersey Avenue Southeast,
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)).
Department of Transportation.
Notice of Order to Show Cause (Order 2015–9–14), Docket DOT–OST–2014–0116.
The Department of Transportation is directing all interested persons to show cause why it should not issue an order finding Aviation Partners of Boynton Beach, LLC d/b/a Hummingbird Air fit, willing, and able, and awarding it a Commuter Air Carrier Authorization.
Persons wishing to file objections should do so no later than October 5, 2015.
Objections and answers to objections should be filed in Docket DOT–OST–2014–0116 and addressed to U.S. Department of Transportation, Docket Operations, (M–30, Room W12–140), 1200 New Jersey Avenue SE., West Building Ground Floor, Washington, DC 20590, and should be served upon the parties listed in Attachment A to the order.
Lauralyn Remo, Air Carrier Fitness Division (X–56), U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590, (202) 366–9721.
Office of the Secretary, U.S. Department of Transportation.
No FEAR Act Notice.
This Notice implements Title II of the Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002 (No FEAR Act of 2002). It is an annual obligation for Federal agencies to notify all employees, former employees, and applicants for Federal employment of the rights and protections available to them under the Federal Antidiscrimination and Whistleblower Protection Laws.
Yvette Rivera, Associate Director of Equal Employment Opportunity Programs, S–32, Departmental Office of Civil Rights, Office of the Secretary, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Room W78–306, Washington, DC 20590, 202–366–5131 or by email at
You may retrieve this document online through the Federal Document Management System at
On May 15, 2002, Congress enacted the “Notification and Federal Employee Antidiscrimination and Retaliation Act of 2002,” now recognized as the No FEAR Act (Pub. L. 107–174). One purpose of the Act is to “require that Federal agencies be accountable for violations of antidiscrimination and whistleblower protection laws” (Pub. L. 107–174, Summary). In support of this purpose, Congress found that “agencies cannot be run effectively if those agencies practice or tolerate discrimination” (Pub. L. 107–174, Title I, General Provisions, section 101(1)). The Act also requires the U.S. Department of Transportation (DOT) to provide this Notice to all DOT employees, former DOT employees, and applicants for DOT employment. This Notice is to inform you of the rights and protections available to you under Federal antidiscrimination and whistleblower protection laws.
A Federal agency cannot discriminate against an employee or applicant with respect to the terms, conditions, or privileges of employment because of race, color, religion, sex, national origin, age, disability, genetic information, equal pay/compensation, marital status, or political affiliation. One or more of the following statutes prohibit discrimination on these bases: 5 U.S.C. 2302(b)(1), 29 U.S.C. 631, 29 U.S.C. 633a, 29 U.S.C. 206(d), 29 U.S.C. 791, 42 U.S.C. 2000e-16 and 2000ff.
If you believe you were a victim of unlawful discrimination on the bases of race, color, sex (gender, pregnancy, sexual harassment, sexual orientation, or gender identity), national origin, religion, age (40 and over), disability (mental or physical), equal pay/compensation, genetic information, or retaliation, you must contact an Equal Employment Opportunity (EEO) counselor within 45 calendar days of the alleged discriminatory action, or in the case of a personnel action, within 45 calendar days of the effective date of the action to try and resolve the matter informally. This must be done before filing a formal complaint of discrimination with DOT (See,
If you believe you were a victim of unlawful discrimination based on age, you must either contact an EEO counselor as noted above or give notice of intent to sue to the Equal Employment Opportunity Commission (EEOC) within 180 calendar days of the alleged discriminatory action. As an alternative to filing a complaint pursuant to 29 CFR part 1614, you can file a civil action in a United States district court under the Age Discrimination in Employment Act, against the head of an alleged discriminating agency, after giving the EEOC not less than a 30 day notice of the intent to file such action. You may file such notice in writing with the EEOC via mail at P.O. Box 77960, Washington, DC 20013, personal delivery, or facsimile within 180 days of the occurrence of the alleged unlawful practice.
If you are alleging discrimination based on marital status or political affiliation, you may file a written discrimination complaint with the U.S. Office of Special Counsel (OSC) (See Contact information below). In the alternative (or in some cases, in addition), you may pursue a discrimination complaint by filing a grievance through the DOT administrative or negotiated grievance procedures, if such procedures apply and are available. Form OSC–11 is available online at the OSC Web site
If you are alleging compensation discrimination pursuant to the Equal Pay Act, and wish to pursue your allegations through the administrative process, you must contact an EEO counselor within 45 calendar days of the alleged discriminatory action as such complaints are processed under EEOC's regulations at 29 CFR part 1614. Alternatively, you may file a civil action in a court of competent jurisdiction within two years, or if the violation is willful, three years of the date of the alleged violation, regardless of whether you pursued any administrative complaint processing. The filing of a complaint or appeal pursuant to 29 CFR part 1614 shall not toll the time for filing a civil action.
A DOT employee with authority to take, direct others to take, recommend, or approve any personnel action must not use that authority to take, fail to take, or threaten to take, a personnel action against an employee or applicant because of a disclosure of information by that individual that is reasonably believed to evidence violations of law, rule, or regulation; gross mismanagement; gross waste of funds; an abuse of authority; or a substantial and specific danger to public health or safety, unless the disclosure of such information is specifically prohibited by law and such information is specifically required by Executive Order to be kept secret in the interest of national defense or the conduct of foreign affairs.
Retaliation against a DOT employee or applicant for making a protected disclosure is prohibited (5 U.S.C. 2302(b)(8)). If you believe you are a victim of whistleblower retaliation, you may file a written complaint with the OSC at 1730 M Street NW., Suite 218, Washington, DC 202–036–4505 using Form OSC–11. Alternatively, you may file online through the OSC Web site at
Under existing laws, DOT retains the right, where appropriate, to discipline a DOT employee who engages in conduct that is inconsistent with Federal Antidiscrimination and Whistleblower Protection laws up to and including removal from Federal service. If OSC
For more information regarding the No FEAR Act regulations, refer to 5 CFR part 724, as well as the appropriate office(s) within your agency (
Pursuant to section 205 of the No FEAR Act, neither the Act nor this notice creates, expands, or reduces any rights otherwise available to any employee, former employee, or applicant under the laws of the United States, including the provisions of law specified in 5 U.S.C. 2302(d).
Office of Foreign Assets Control, Treasury.
Notice.
The Treasury Department's Office of Foreign Assets Control (OFAC) is publishing the names of fifteen individuals whose property and interests in property are blocked pursuant to Executive Order 13224 of September 23, 2001, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism.”
OFAC's actions described in this notice are effective on September 29, 2015.
Associate Director for Global Targeting, tel.: 202/622–2420, Assistant Director for Sanctions Compliance & Evaluation, tel.: 202/622–2490, Assistant Director for Licensing, tel.: 202/622–2480, Office of Foreign Assets Control, or Chief Counsel (Foreign Assets Control), tel.: 202/622–2410, Office of the General Counsel, Department of the Treasury (not toll free numbers).
The SDN List and additional information concerning OFAC sanctions programs are available from OFAC's Web site (
On September 29, 2015, OFAC blocked the property and interests in property of the following fifteen individuals pursuant to E.O. 13224, “Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten To Commit, or Support Terrorism”:
1. AL–SHA'IRI, Husayn Al-Salihin Salih (a.k.a. AL–SHA'ARI, Hasan al-Salahayn Salih; a.k.a. “ABU–HABIB, Hasan”; a.k.a. “AL–LIBI, Abu-Habib”; a.k.a. “AL–SALIHIN, Habib”); DOB 01 Jan 1975 to 31 Dec 1975; POB Darna, Libya; citizen Libya; Passport 542858 (Libya); Personal ID Card 55252 (Libya) (individual) [SDGT].
2. IKANOVIC, Bajro; DOB 08 Nov 1976; POB Hrncici, Bratunac, Bosnia and Herzegovina; citizen Bosnia and Herzegovina; National ID No. JMB 0811976181415 (Bosnia and Herzegovina) (individual) [SDGT].
3. AL–RUMAYSH, Mu'tassim Yahya 'Ali (a.k.a. “ABU–RAYHANAH”; a.k.a. “AL–JEDDAWI, Abu-Rayhanah al-'Ansari”; a.k.a. “HANDALAH”; a.k.a. “RAYHANAH”); DOB 04 Jan 1973; POB Jeddah, Saudi Arabia; citizen Yemen; Passport 01055336 (Yemen); Residency Number 2054275397 (Saudi Arabia) issued 22 Jul 1998 (individual) [SDGT].
4. AL–HARBI, Nasir Muhammad 'Awad al-Ghidani (a.k.a. AL–HARBI, Nasir Muhammad 'Iwad al-Ghaydani; a.k.a. “AL–GHAYDANI, Abu-Bilal”; a.k.a. “AL–HARBI, Abu-Bilal”; a.k.a. “AL–NAJDI, Hammam”; a.k.a. “AL–RAS, Ra'i”; a.k.a. “BILAL”), Yemen; DOB 20 Jul 1974; alt. DOB 05 Sep 1974; POB al-Qasim, Saudi Arabia; citizen Saudi Arabia (individual) [SDGT].
5. AL–KARMUSH, Muwaffaq Mustafa Muhammad (a.k.a. AL KASAB, Muwafaq Mustafa Muhammad Ali; a.k.a. AL–KARMOUSH, Muafaq Mustafa Mohammed; a.k.a. AL–KARMUSH, Muwafaq Mustafa; a.k.a. AL–KARMUSH, Muwafaq Mustafa Muhammad 'Ali; a.k.a. AL–KARMUSH, Muwaffaq Mustafa; a.k.a. AL–KARMUSH, Muwaffaq Mustafa Muhammad 'Ali Mahmud; a.k.a. EL KHARMOUSH, Muwaffaq Mustafa Mohammad; a.k.a. KARMOOSH, Muwafaq Mustafa Mohammed Ali; a.k.a. KARMUSH, Muwaffaq; a.k.a. MUHAMMAD, Muwaffaq Mustafa; a.k.a. “Abu Salah”; a.k.a. “AL-'AFRI, Abu Salah”); DOB 01 Feb 1973; citizen Iraq; Gender Male; Passport A5476394 (Iraq) (individual) [SDGT].
6. HELAL, Mounir Ben Dhaou Ben Brahim Ben (a.k.a. HELEL, Mounir; a.k.a. HILEL, Mounir; a.k.a. “AL–TUNISI, Abu Maryam”; a.k.a. “IBRAHIM, Munir Bin Du Bin”; a.k.a. “RAHMAH, Abu”); DOB 10 May 1983; POB Ben Guerdane, Tunisia; Gender Male (individual) [SDGT].
7. FEBRIWANSYAH, Tuah (a.k.a. FACHRI, Muhammad; a.k.a. FACHRIA, Muhammad; a.k.a. FACHRY, Muhammad; a.k.a. FEBRIWANSAH, Tuwah; a.k.a. FEBRIWANSYAH BIN ARIF HASRUDIN, Tuah), Jalan Baru LUK, No. 1 RT 05/07, Kelurahan Bhakti Jaya, Setu Sub-District, Pamulang District, Tangerang Selatan, Banten Province, Indonesia; DOB 18 Feb 1968; POB Jakarta, Indonesia; nationality Indonesia; National ID No. 09.5004.180268.0074 (Indonesia) (individual) [SDGT].
8. IBRAHIM, Muhammad Sholeh (a.k.a. IBRAHIM, Mohammad Sholeh; a.k.a. IBRAHIM, Muh Sholeh; a.k.a. IBRAHIM, Muhammad Soleh; a.k.a. IBRAHIM, Sholeh; a.k.a. IBROHIM, Muhammad Sholeh); DOB Sep 1958; POB Demak, Indonesia; nationality Indonesia; Ustad (individual) [SDGT].
9. ALJARBA, Tarad Mohammad (a.k.a. ALJARBA, Tarad; a.k.a. “AL–SHIMALI, Abu-Muhammad”); DOB 20 Nov 1979; POB Iraq; nationality Saudi Arabia; Passport E704088 (Saudi Arabia) issued 26 Aug 2003 expires 02 Jul 2008 (individual) [SDGT].
10. MAHMOOD, Aqsa (a.k.a. LAYTH, Umm), Raqqa, Syria; DOB 11 May 1994; POB Glasgow, UK; nationality United Kingdom; alt. nationality Pakistan; Passport 720134834 (United Kingdom) issued 27 Jun 2012 expires 27 Jun 2022; National ID No. 3520162676986 (Pakistan) (individual) [SDGT].
11. HUSSAIN, Omar (a.k.a. “AL–BRITANI, Abu Sa'eed”), High Wycombe, Buckinghamshire, United Kingdom; DOB 01 Jan 1986 to 31 Dec 1987; nationality United Kingdom; (individual) [SDGT].
12. KHAN, Hafiz Saeed (a.k.a. AHMAD, Sayed; a.k.a. HAFIZ, Said Khan; a.k.a. KHAN, Hafez Sayed; a.k.a. KHAN, Hafiz Sa'id; a.k.a. KHAN, Hafiz Said; a.k.a. KHAN, Hafiz Said Muhammad; a.k.a. KHAN, Shaykh Hafidh Sa'id; a.k.a. KHAN, Wali Hafiz Sayid; a.k.a. SAEED, Hafiz; a.k.a. SA'ID, Hafiz); DOB 01 Jan 1976 to 31 Dec 1978; alt. DOB 01 Jan 1977 to 31 Dec 1979; POB Mamondzowi Village, Orakzai Agency, Pakistan; nationality Pakistan (individual) [SDGT].
13. AL–SHAWAKH, Ali Musa (a.k.a. AL-'AUJAYD, Abdullah Shuwar; a.k.a. AL–HAMUD, 'Ali; a.k.a. AL–SHAWAGH, 'Ali Musa; a.k.a. AL–SHAWAKH, Ali al-Hamoud; a.k.a. AL–SHAWAKH, Muhammad 'Ali; a.k.a. AL–SHAWWAKH, Ibrahim; a.k.a. AWAS, Ali; a.k.a. DERWISH, 'Ali; a.k.a. HAMMUD, Ali; a.k.a. “AL–SAHL, Abu Luqman”; a.k.a. “AL–SURI, Abu Luqman”; a.k.a. “AYYUB, Abu”; a.k.a. “LUQMAN, Abu”); DOB 01 Jan 1973 to 31 Dec 1973; POB
14. LAABOUDI, Morad (a.k.a. LAABOUDI, Mourad; a.k.a. “ABU ISMAIL”; a.k.a. “AL–MAGHRIBI, Abu Ismail”; a.k.a. “AL–MAGRABI, Abu Isma'il”); DOB 26 Feb 1993; citizen Morocco; Passport UZ6430184 (Morocco); National ID No. CD595054 (Morocco) (individual) [SDGT].
15. AL–JABURI, Sami Jasim Muhammad (a.k.a. AL-'AJUZ, Sami Jasim; a.k.a. AL-'AJUZ, Sami Jasim Muhammad; a.k.a. A'RAJ, Sami; a.k.a. MUHAMMAD, Sami Jasim; a.k.a. “ASIA, Abu”; a.k.a. “ASIYA, Abu”; a.k.a. “HAMAD, Hajji”; a.k.a. “HAMID, Hajji”; a.k.a. “HAMID, Ustadh”; a.k.a. “SAMIYAH, Abu”; a.k.a. “SUMAYYAH, Abu”); DOB 01 Jan 1973 to 31 Dec 1973; alt. DOB 01 Jan 1970 to 31 Dec 1970; POB Al-Sharqat, Salah ad-Din Province, Iraq; alt. POB Mosul, Iraq; nationality Iraq (individual) [SDGT].
Notice of Meeting
In accordance with the Federal Advisory Committee Act, 5 U.S.C., App. 2, the Commission on Care gives notice that it will meet on Monday, October 19, 2015, and Tuesday, October 20, 2015, at the Washington Marriott at Metro Center, 775 12th St. NW., Washington, DC 20005. The meeting will convene at 8:30 a.m. both days and end at 5:30 p.m. on October 19, and end at 12:00 p.m. on October 20. The meeting is open to the public.
The purpose of the Commission, as described in section 202 of the Veterans Access, Choice, and Accountability Act of 2014 (VACAA), is to examine the access of Veterans to health care from the Department of Veterans Affairs (VA) and strategically examine how best to organize the Veterans Health Administration (VHA), locate health care resources, and deliver health care to Veterans during the next 20 years. In undertaking this assessment, the Commission will evaluate and assess the results of the Independent Assessment conducted by CMS Alliance to Modernize Healthcare (CAMH) in accordance with section 201 of VACAA.
On October 19, the Commission will hear from experts who will provide insights on work to be done by the Commission. In addition, presentations will be made by VHA on clinical health services. On October 20, the Commission will hear about access to VA health care and support services.
No time will be allocated at this meeting for receiving oral presentations from the public. However, the public may submit written statements for the Commission's review to Sharon Gilles, Designated Federal Officer, Commission on Care, 1575 I (Eye) Street NW., Suite 240, Washington, DC 20005, or email at
Fish and Wildlife Service, Interior.
Notice of 12-month petition finding.
We, the U.S. Fish and Wildlife Service (Service), announce a 12-month finding on petitions to list the greater sage-grouse (
The finding announced in this document was made on October 2, 2015.
This finding is available on the Internet at
Michael Thabault, 303–236–9779.
Based on the best available scientific and commercial information, we have determined that the primary threats to greater sage-grouse have been ameliorated by conservation efforts implemented by Federal, State, and private landowners. In 2010, we identified habitat loss, fragmentation, and inadequacy of existing regulatory mechanisms as factors leading to a warranted determination. Since that time, regulatory mechanisms through Federal and three State plans that incorporate conservation principles identified by the scientific experts have substantially reduced these risks in approximately 90 percent of the breeding habitat through avoidance and minimization measures. Advancements in oil and gas technologies have reduced the anticipated footprint of future development; the future conversion of sagebrush habitats to agriculture is unlikely to impact greater sage-grouse because high densities of breeding sage-grouse do not occur in habitats that are suitable for agriculture; and renewable energy development, although still a potential, is unlikely to occur in areas where greater sage-grouse occur in the highest densities. Fire and invasive species continue to occur in greater sage-grouse habitats, especially in the Great Basin, but existing management and commitments for suppression, restoration, and noxious weed treatments are reducing that impact.
Rangewide, a number of relatively large greater sage-grouse populations continue to be distributed across the landscape and are supported by undisturbed expanses of habitat. Some habitat loss associated with energy development, infrastructure, wildfire, and invasive plants will continue into the future. However, regulatory mechanisms provided by Federal and three State plans reduce threats on approximately 90 percent of the breeding habitat across the species' range.
We use many acronyms throughout this document. To assist the reader, we provide a list of the most frequently used acronyms here for easy reference:
The following is an outline of the major sections included in this document:
Section 4(b)(3)(B) of the Act (16 U.S.C. 1531
From 1999 to 2005, we received eight petitions to list the greater sage-grouse throughout its range or within specific populations (Table 1). Among those, two were petitions to list the bi-State Distinct Population Segment (DPS) of the greater sage-grouse (2002 and 2005), which we have addressed separately and, hence, are not included in this status assessment (see Bi-State Distinct Population Segment, below). The responses to the other six petitions and the outcomes of ensuing lawsuits and court settlements are detailed in the 2010 finding (75 FR 13910, March 23, 2010), and are summarized in Table 1.
In 2010, we found that listing the greater sage-grouse rangewide was warranted, but precluded by other higher priority actions. That finding was based on continuing population declines, with some areas of local
On May 10, 2011, we filed a multiyear workplan as part of a proposed settlement agreement with Wild Earth Guardians and others in a consolidated case in the U.S. District Court for the District of Columbia. On September 9, 2011, the Court accepted our agreement with the plaintiffs in
Greater sage-grouse are birds in the Phasianidae family, which is a diverse taxonomic group consisting of over 50 genera including turkeys (
In 2010, we found the bi-State population to be a DPS because it is genetically unique and markedly separate from the rest of the greater sage-grouse range (75 FR 13910, March 23, 2010). This DPS has been addressed in a separate status review and was determined to be not warranted for listing (80 FR 22828, April 23, 2015). Therefore, the bi-State population of greater sage-grouse will not be addressed in this status review.
In 2001, we concluded in a 12-month finding that the Columbia Basin population of the western sage-grouse, a subspecies of the greater sage-grouse, was a valid DPS that warranted listing under the Act (66 FR 22984, May 7, 2001). The subspecies was previously described as being found in southern British Columbia, central Washington, and parts of Oregon, Nevada, and California. Since that 12-month finding, new information emerged that led us to conclude in 2010 that the best scientific and commercial information does not support the recognition of and the taxonomic validity of the western subspecies (75 FR 13910, March 23, 2010). In that finding, we also reported that we would reevaluate the status of the Columbia Basin population as it relates to the greater sage-grouse in the future. Therefore, in the following section we reevaluate the validity (
Within our
(1) The discreteness of a population in relation to the remainder of the species to which it belongs;
(2) The significance of the population segment to the species to which it belongs; and
(3) The population segment's conservation status in relation to the Act's standards for listing, delisting, or reclassification (is the population segment endangered or threatened).
Under the DPS policy, a population segment of a vertebrate taxon may be considered discrete if it satisfies either one of the following conditions:
(1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors. Quantitative measures of genetic or morphological discontinuity may provide evidence of this separation.
(2) It is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act.
In our 2001 12-month finding on the Columbia Basin DPS (66 FR 22984, May 7, 2001), we found that the population, which is located in Washington, was physically discrete from other populations of what we then considered the western subspecies of greater sage-grouse in central and southern Oregon. Below, we reevaluate that finding giving consideration to new information and conducting our analysis with respect to the entire range of greater sage-grouse.
The pre-European settlement distribution of greater sage-grouse is generally described as being continuous from central Oregon, north to the Columbia Basin (Schroeder
No documented instances exist of greater sage-grouse moving between the Columbia Basin and any other greater sage-grouse populations without the aid of translocations. Seasonal migration in sage-grouse over 100 km (62 mi) has been observed (Hagen 1999, p. 39; Tack
The ability of greater sage-grouse to move through the landscape is affected by many factors, including the presence of suitable habitats or topographic features that impede movement (Schulwitz
Analysis of genetic variation across the range of greater sage-grouse is consistent with relatively short-distance dispersal, with gene flow (the transfer of genetic material from one population to another) decreasing as the distance between populations increases (
Greater sage-grouse have been translocated to the Columbia Basin from Idaho, Oregon, Nevada, and Wyoming (Livingston
If a population segment is considered discrete under one or more of the conditions described in our DPS policy, its biological and ecological significance will be considered in light of Congressional guidance that the authority to list DPSs be used “sparingly” (see Senate Report 151, 96th Congress, 1st Session) while encouraging the conservation of genetic diversity. In making this determination, we consider available scientific evidence of the DPS's importance to the taxon to which it belongs. Since precise circumstances are likely to vary considerably from case to case, the DPS policy does not describe all the classes of information that might be used in
(1) Persistence of the population segment in an ecological setting unusual or unique to the taxon;
(2) Evidence that loss of the population segment would result in a significant gap in the range of a taxon;
(3) Evidence that the population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range; or
(4) Evidence that the population segment differs markedly from other populations of the species in its genetic characteristics.
A population segment needs to satisfy only one of these conditions to be considered significant. Furthermore, other information may be used as appropriate to provide evidence for significance.
In our 2001, 12-month finding on the Columbia Basin DPS, we found that the population was significant to the western subspecies because it occurred in a unique ecological setting to the subspecies and because loss of the Columbia Basin would have resulted in a significant gap in the range of the western subspecies (66 FR 22984, May 7, 2001, p. 22992). Below we reevaluate these findings giving consideration to new information and conducting our analysis on the significance of the population segment to the greater sage-grouse species, rather than to the no-longer-recognized western subspecies.
(1) The Columbia Basin is a unique ecosystem, whose characteristics were the result of a unique combination of elevation, soil, influences of historical geologic processes, and climatic conditions; as a result, sagebrush habitats in the Columbia Basin could be differentiated from sagebrush habitats outside of the Columbia Basin by a number of floristic characteristics, including the presence of
(2) Sage-grouse occupying the Columbia Basin were, “necessarily,” differentially exploiting the resources that are available, as compared with sage-grouse in central and southern Oregon; and that these differences in exploitation of resources had bearing on their food and cover preferences, distribution, movements, reproductive fitness, and ultimately, their survival; and
(3) The unique elements of the Columbia Basin held different management implications for western sage-grouse within this ecosystem (66 FR 22984, May 7, 2001).
As stated in the DPS Policy, occurrence in an unusual ecological setting may indicate that a population segment represents a significant resource warranting conservation under the Act (61 FR 4722, February 7, 1996). In considering whether the population occupies an ecological setting that is unusual or unique for the taxon, we evaluate whether the habitat includes unique features not used by the taxon elsewhere and whether the habitat shares many features common to the habitats of other populations. We further evaluate whether any of these differences could play an important biological role with respect to the remainder of the taxon, such as by contributing to the taxon's prospects for survival, to a degree that the population warrants conservation under the Act.
The Columbia Basin represents a separate floristic province within the range of the greater sage-grouse and is unique in that none of the ecosystems within the range of the greater sage-grouse are exactly the same with respect to elevation, soil, influences of historical geologic processes, and climatic conditions. As we found in 2001, these differences have resulted in some differences to the types of sagebrush and other vegetative components present in the ecosystem (66 FR 22984, May 7, 2001, pp. 22989–22991). However, simply the occurrence of a species within a definable ecosystem does not, by itself, make it significant to the taxon under the DPS Policy. Sagebrush-dominated plant communities vary considerably across the range of greater sage-grouse (West and Young 2000, pp. 259–267), and specific habitat components used by greater sage-grouse can vary due to biotic and abiotic factors (Connelly
The greater sage-grouse appears to be fairly adaptable to a variety of conditions as it: (1) Occurs throughout a wide variety of sagebrush habitats in western North America; (2) occurs and breeds from less than 610 m (2,000 ft) to more than 3,000 m (9,842 ft) above sea level; (3) spans a variety of climatic conditions from relatively wet montane sagebrush communities to dry sagebrush types; and (4) uses a wide range of understory vegetation during the breeding and brood-rearing periods (Aldridge and Brigham 2002, pp. 440–442; Connelly
The degree to which regional differences in habitat components affect greater sage-grouse distribution, reproductive fitness, and survival is complex (Connelly
Under the DPS Policy, a determination of significance can be made if a population segment persists in a unique or unusual ecological setting that is significant to the taxon to which it belongs. Although the Columbia Basin differs in some ways from other habitats that the greater sage-grouse inhabits, this is not unusual for the greater sage-grouse rangewide given the diversity of
(1) Columbia Basin greater sage-grouse represent the extreme northwestern extent of greater sage-grouse range and the northernmost extent of the historical distribution of the western sage-grouse;
(2) The Columbia Basin historically encompassed roughly 55 percent of the entire range of western sage-grouse; and
(3) Due to its potential isolation, greater sage-grouse in the Columbia Basin are likely experiencing increased directional selection due to marginal and varied habitats at the taxon's range periphery, exhibiting genetic consequences of reduced gene flow from other population segments, and responding (and will continue to respond) to the different anthropogenic (human caused) influences in the region (66 FR 22984, May 7, 2001).
Greater sage-grouse in the Columbia Basin are the northwestern extent of the sage-grouse range, but greater sage-grouse in Alberta and Saskatchewan and northern Montana make up the northernmost extent of the range. To assess the degree to which being the northwestern extent of the range makes the population significant, we must consider the proportion of individuals in this extent of the range and the amount of habitat available there for greater sage-grouse; being a peripheral population, by itself, does not connote significance to the taxon. Relative to the rest of the range of greater sage-grouse (excluding the bi-State DPS), the Columbia Basin is estimated to contain only 0.6 percent of the rangewide population estimate (Doherty
In addition, given new information since 2001, we must reevaluate our conclusion relative to the likelihood of directional selection due to the isolation of this peripheral population. The best available population and genetic data suggest that greater sage-grouse in the Columbia Basin have undergone a severe reduction in population size, and are now isolated from other populations (Schroeder
Morphological or behavioral differences in greater sage-grouse may be indicators of adaptive traits not revealed through analysis of neutral genetic markers. Comparisons of greater sage-grouse in the Columbia Basin with other greater sage-grouse populations suggest they are heavier than birds in Idaho, Nevada, Oregon, and California, but are similar in mass to greater sage-grouse in northern Colorado to Alberta (Schroeder 2008, pp. 5–9). Although some wing and tail measurements differed between greater sage-grouse from the Columbia Basin and elsewhere, the comparison included only a small number of other populations, measurement bias was unknown, and the conclusion of the author was that the available morphometric data did not illustrate any unique morphological characteristics in the Columbia Basin birds (Schroeder 2008, p. 10). Similarly, an assessment of the available behavioral data did not reveal any substantial differences in greater sage-grouse behavior in the Columbia Basin (Schroeder 2008, pp. 9–10).
In summary, loss of the Columbia Basin population would not result in a significant gap in the range of greater sage-grouse. This area represents less than 1 percent of the rangewide population estimates and less than 3 percent of sagebrush habitat. While loss of this population would reduce the occupied range of the species, it would not remove a habitat type found nowhere else in the range nor would it create a barrier to the movement of birds from other populations. Although the Columbia Basin population is peripheral and isolated, there is no evidence that it has been isolated for long periods of evolutionary time, resulting in significant adaptive traits that might indicate its loss would be significant to the taxon.
Additional rangewide studies of neutral genetic variation since 2001 support the conclusion that greater sage-grouse in the Columbia Basin segregate from the other populations when evaluated using quantitative measures of genetic diversity (Benedict
Evaluation of mitochondrial DNA (mtDNA) revealed that approximately 90 percent of the sampled greater sage-grouse in the Columbia Basin had a single mitochondrial DNA haplotype, while only one novel haplotype was present (Oyler-McCance
Nuclear genetic data evaluated using microsatellite markers showed that populations in the Columbia Basin had the lowest genetic diversity of the 46 populations of greater sage-grouse studied (Oyler-McCance
In 2010, we determined that the bi-State population qualified as a DPS under the Act. At that time, we deferred any other decisions about potential DPSs, including an assessment of the Columbia Basin population, until this status review. After consideration of the distinctness and significance of the Columbia Basin population, giving consideration to new information, and conducting our analysis on the significance of the population to the greater sage-grouse rangewide instead of to the previously recognized western subspecies, we have determined that it does not meet the criteria for a DPS. Therefore, the Columbia Basin population will be considered together with the other populations in the greater sage-grouse range (hereafter referred to as sage-grouse). Specifically, when we discuss sage-grouse in the Great Basin, we are including Columbia Basin in those discussions. The remainder of this status review will consider all populations and habitat across the range of the species, with the exception of the bi-State DPS.
Prior to European settlement of western North America in the 19th century, sage-grouse occurred in an area that today would cover 13 States and 3 Canadian provinces—Arizona, California, Colorado, Idaho, Montana, Nebraska, Nevada, North Dakota, Oregon, South Dakota, Utah, Washington, Wyoming, British Columbia, Alberta, and Saskatchewan (Schroeder
The Western Association of Fish and Wildlife Agencies (WAFWA) Conservation Strategy for Greater Sage-grouse (Stiver
Sagebrush occurs in two natural vegetation types that are influenced by elevation, temperature, and patterns of precipitation (Miller
Sage-grouse currently occupy a portion of their historical range and are more concentrated in certain Core Areas. Sage-grouse have been extirpated from Nebraska, British Columbia, and Arizona (Schroeder
Sage-grouse depend on a variety of shrub-steppe habitats throughout their life cycle and are considered a sagebrush obligate (Patterson 1952, p. 48). Sage-grouse use a variety of sagebrush species such as
Sagebrush is the most widespread vegetation in the intermountain lowlands in the western United States (West and Young 2000, p. 259). Sagebrush occurs in two natural vegetation types that are delineated by temperature and patterns of precipitation (Miller
Sagebrush is long-lived, with plants of some species surviving up to 150 years (West 1983, p. 340). Sagebrush is resistant to environmental extremes, with the exception of fire and occasionally defoliating insects (West 1983, p. 341). Natural sagebrush re-colonization depends on the presence of adjacent live plants for a seed source or on the seed bank, if present (Miller and Eddleman 2000, p. 17). Although seed viability and germination are high, seed dispersal is limited (West and Young 2000, p. 260). Additionally, sagebrush seeds typically do not remain viable for more than one growing season, and evidence suggests that seeds do not persist in the soil more than 1 year; however, seeds have higher odds of persisting in the seed bank if they are buried (Wijayratne and Pyke 2012, p. 438). Productivity of plants associated with the sagebrush understory varies widely and is influenced by moisture availability, soil characteristics, climate, and topographic position (Miller
Sage-grouse depend on large areas of contiguous sagebrush to meet all seasonal habitat requirements (Connelly
Federal lands encompass the majority of the sage-grouse occupied range, with MZs III, IV, and V being more than 60 percent federally owned (Table 2). Primary Federal land managers within the sage-grouse occupied range include Bureau of Land Management (BLM) and the U.S. Forest Service (USFS), which together manage 51 percent of the sage-grouse occupied range. Other Federal owners include the National Park Service, Department of Defense (DoD), the Service, and Department of Energy (DOE). Private lands comprise approximately 39 percent of the species' occupied range, with the largest proportion of private lands occurring in MZs I and VI. Tribal lands cover approximately 3 percent, and State lands cover approximately 5 percent of the current sage-grouse occupied range.
During the breeding season, male sage-grouse gather together to perform courtship displays on areas called leks. These areas are often characterized by having bare soil, shortgrass-steppe, windswept ridges, exposed knolls, or other relatively open sites (Connelly
After mating, females travel to nesting areas characterized by sagebrush with an understory of native grasses and forbs that provides cover, an insect prey base, and herbaceous forage for pre-laying and nesting females (Connelly
The likelihood of a female nesting in a given year averages 82 percent in the eastern portion of the range and 78 percent in the western portion of the range (Connelly
Females rear their broods near the nest site for the first 2 to 3 weeks following hatching (Connelly
Approximately 12 weeks after hatching, sage-grouse gradually move from sagebrush uplands to more mesic (wet) areas during the late brood-rearing period (Peterson 1970, p. 149) as herbaceous vegetation dries during the hot summer (Connelly
During the winter, sage-grouse depend almost exclusively on sagebrush for both food and cover (Thacker
The availability of winter habitat is important to sage-grouse persistence. Across the range of sage-grouse, winter habitat comprised from 6.8 to 18 percent of the total landscape used by different populations (Dzialak
The distances sage-grouse move between seasonal habitats are highly variable across the occupied range (Connelly
Despite the documentation of extensive seasonal movements in this species (Fedy
Habitat-based measures show that maintaining population connectivity is essential for sage-grouse population persistence. Connectivity between sage-grouse populations declined from 1965 to 2007 due to the loss of leks that historically provided connectivity and lower numbers of birds left to disperse (Knick and Hanser 2011, p. 395). As connectivity declined, isolated leks, those leks with low connectivity, were lost first (Knick and Hanser 2011, p. 395), with small decreases in lek connectivity resulting in large increases in probability of lek abandonment (Knick and Hanser 2011, p. 403). This suggests that as connectivity between leks at the edge of the range is lost, the probability these leks will persist is likely to decline (Knick and Hanser 2011, p. 396).
Maintaining sagebrush distribution is the most important factor in maintaining sage-grouse population connectivity (Knick and Hanser 2011, p. 404). Habitat loss decreases the connectivity between seasonal habitats, increasing the potential that a population may be lost (Doherty
Studies of genetic information among populations have revealed patterns of sage-grouse movement and isolation across the landscape. A genetic analysis revealed that the movement of individuals tends to be among neighboring populations and is unlikely to occur over great distances (Oyler-McCance
A recent analysis shows that core population centers and the habitat between those centers are important for maintaining connectivity (Crist
Estimating population sizes and trends of sage-grouse is difficult due to the large, 11-State range of the species, incomplete sampling, and challenges counting females (Garton
Recent work by MacKenzie and Evans (2015) has indicated the current sampling framework across the range of sage grouse which makes interpreting trend and population data difficult. However, their analysis has indicated that there has been a long-term decline in the number of males per lek which is consistent with other recent trend analyses (Garton
Sage-grouse populations increase and decrease over time, making assessments of population size and short-term trends difficult. The length of these population cycles appears to vary across the range, but most populations have an 8- to 10-year population cycle (Rich 1985, pp. 5–8; Fedy and Doherty 2011, pp. 919–922). The drivers of the cycle are unknown, but may be caused by the amount and timing of precipitation (Rich 1985, p. 14; Fedy and Doherty 2011, p. 921).
In the 2010 finding, we concluded that rangewide, sage-grouse were experiencing a long-term decline in abundance (75 FR 13910, March 23, 2010, pp. 13920–13923). We noted the difficulty in determining the actual rate and magnitude of the declines, but noted that three independent studies had concluded that declines were occurring (Connelly
Both Garton
Analysis of trend data is sensitive to the start and stop dates of the period analyzed due to the cyclic nature of sage-grouse populations. Garton
We developed two models for use in this status assessment: (1) Population Index Model and (2) Occupied Breeding Habitat Distribution Model. These models were developed to evaluate risk to sage-grouse populations and benefits of conservation actions designed to ameliorate those risks. Our models, built with collaboration from WAFWA, are used as metrics for risk analyses and general Geographic Information System (GIS) queries. Full discussions of how the models were created and used are below.
In the 2010 finding, we assessed impacts to sage-grouse and their habitat based on the portion of occupied range where a disturbance occurred. This approach was based on the best available GIS data at that time, but may have overestimated some impacts, because all lands within the occupied range were assumed to provide habitat. We used this analysis in 2010 because current information available to us about the occupied sage-grouse range was developed at a very broad scale and included large areas of non-habitat. The Occupied Breeding Habitat Distribution Model was developed to more accurately portray the breeding areas that are important to sage-grouse. The Occupied Breeding Habitat Distribution Model uses sage-grouse lek data as a proxy for landscapes important to breeding sage-grouse, because leks are central to the breeding ecology of sage-grouse. We developed a model that statistically links habitat characteristics around known lek locations to habitat features such as the amount of sagebrush or tree cover within a 6.4-km (4-mi) radius. The output of the model is a prediction of the probability that each 120-m
We developed the Population Index Model to spatially identify Core Areas on the landscape that contain population centers of sage-grouse (Figure 3). We did this because sage-grouse populations are highly clumped, and relatively small areas can contain a disproportionate amount of sage-grouse. To create our Population Index Model, we used lek data to identify hotspots using standard statistical methods. We used the Occupied Breeding Habitat Distribution Model to develop our final Population Index Model. The model results are grids that represent an index to the relative amount of breeding birds for each 120 m
Unfortunately we did not receive population or habitat data from the two Canadian provinces within the species range and, therefore, could not include these areas in our modeling efforts. The abundance of sage-grouse is low in both Canadian provinces (Alberta Environment and Sustainable Resource Development 2013, p. 8). Due to the low number of birds remaining in Canada, coupled with the limited amount of existing habitat in Canada, we do not anticipate that the exclusion of these areas affects the outcome of this range-wide model.
Estimating sage-grouse abundance is difficult due to changes in seasonal distributions, the cryptic coloration, and behavior of females and their offspring, and the lack of a systematic survey protocol and sampling scheme across the range of the species (WAFWA 2015, pp. 44–46). Lek counts do not provide a precise estimate of population size; however, these counts provide a useful index to the population size that detects population changes over time (Johnson and Rowland 2007, p. 20). Although an imperfect measure, peak counts of males on leks are the best available information about the number of sage-grouse in an area (Johnson and Rowland 2007, p. 20) and are the accepted method to assess sage-grouse abundance trends (WAFWA 2015, p. 2; Garton
Information reviewed for the 2010 finding indicated a long-term decline of sage-grouse abundance since lek count surveys were initiated in the 1960s. New information since 2010 confirms that long-term declines have occurred from 1965 to 2014 across all MZs where sufficient data exist to make inferences (Garton
The landscape of the western United States has undergone significant changes since the onset of European settlement, including the dramatic alteration of key sage-grouse habitats. Despite human population growth and accompanying development, sagebrush habitats persist on millions of acres across 11 States in the west. Sage-grouse numbers have declined since pre-European settlement, but sage-grouse distribution (Figure 3) has remained relatively unchanged since our first status review in 2005 (70 FR 2244, January 12, 2005). In other words, despite historical and current population declines, sage-grouse are still distributed throughout their range.
The 2005 status review found that, despite a growing number of serious threats, large numbers of birds continued to be distributed across the range (70 FR 2244, January 12, 2005, p. 2279). At that time, 92 percent of the known active leks occurred in 8 of 41 populations; 5 of those populations were so large and expansive that they were subdivided into 24 subpopulations to facilitate analysis (Connelly
In 2010, we conducted a second status review for sage-grouse (75 FR 13910, March 23, 2010, entire). Although the species remained widely distributed across the landscape, we found it warranted for listing under the Act due to continued loss and fragmentation of habitat exacerbated by a lack of adequate regulatory mechanisms to address habitat loss. The primary drivers of habitat fragmentation identified were renewable and nonrenewable energy development in prime sage-grouse habitats, continued expansion of supporting infrastructure, the spread of invasive annual grasses and associated changes in wildfire regimes, and the lack of adequate regulatory structures to address these impacts. In addition, trend data showed a continuation of population declines identified in 2005. Without regulatory mechanisms in place to control continued habitat loss and fragmentation, we determined the sage-grouse was at risk of extinction in the foreseeable future and, therefore, warranted protection under the Act. However, due to the workload of managing higher priority species, we designated the sage-grouse a “candidate” species, assigning it a listing priority number of 8 to indicate the moderate magnitude of imminent threats. Species with lower listing priority numbers are addressed before those with higher priority numbers.
We also concluded that the extinction risk was not imminent. As noted in the 2010 finding when determining its listing priority status: “We consider the threats that the sage-grouse faces to be moderate in magnitude because the threats do not occur everywhere across the range . . . and where they are occurring they are not of uniform intensity or of such magnitude that the species requires listing immediately to ensure its continued existence. While sage-grouse habitat has been lost or altered in many portions of the species' range, substantial habitat still remains to support the species in many areas of its range. We believe the ability of these population centers to maintain high densities in the presence of several threat factors is an indication that the magnitude of threats is moderate overall” (75 FR 13910, March 23, 2010, pp. 14008–14009). The 2010 finding has galvanized a rangewide conservation effort that includes new management plans developed by Federal and State agencies to establish regulatory mechanisms adequate to address identified threats.
Since 2010, the already voluminous scientific literature on sage-grouse has been augmented by extensive, newly published research on sage-grouse biology, sagebrush habitat, and impacts to both. We collected this information for our status review through a direct request to our conservation partners and through general literature reviews. We have used this data to inform our understanding of the current status of sage-grouse and how its status has changed since 2010. All relevant published resources, as well as unpublished data, were considered in our status review. Not all of this new information is cited in this document, as it either did not provide additional information on impacts to the species or response to conservation, or was repetitive of other studies already cited in our assessment. In addition, we considered all new scientific information presented to us in response to our data call for this status review, information received during our previous annual Candidate Notice of Review data calls, data entered into the Conservation Efforts Database (CED), and recently published articles. Several articles providing new information since 2010 are summarized below.
New population trend analyses incorporating up to 7 years of additional data have been completed (Garton
An evolving appreciation of mechanisms that affect sage-grouse and sagebrush habitats assisted in the development of new applied science for conservation efforts, including wildfire and invasive management (Chambers
The U.S. Geological Survey (USGS) compiled the findings of published scientific literature evaluating the influence of human activities and infrastructure on sage-grouse (Manier
Many partners across the range of the sage-grouse are working to conserve sage-grouse habitat. In 2014, we developed the CED, a spatially explicit, online platform for efficiently collecting data from conservation partners about their sage-grouse conservation efforts. More than 100 partners across the range of the species entered information about 6,200 projects into the CED. Of these projects, 44 percent (2,700 projects) cover more than 1.2 million ha (3
The expansive range of sagebrush habitat has compelled managers to take a landscape approach to conservation efforts, with sage-grouse assuming the focus of these efforts for the past decade. In 2006, WAFWA developed a comprehensive strategy for conserving habitat for the benefit of this species. The strategy outlined the need to develop partnerships among local, State, Provincial, Tribal, and Federal agencies, non-governmental organizations, and private landowners to design and implement cooperative actions to support robust populations of sage-grouse and the landscapes and habitats upon which they depend (Stiver
In 2011, the BLM assembled a National Technical Team (NTT) of sage-grouse and sagebrush habitat experts to identify the best available science‐based information to guide the development of Federal land management plans for the greater sage‐grouse (BLM 2011a, entire). The NTT Report proposed conservation measures based on habitat requirements and other life-history aspects of the species. The NTT Report also described the scientific basis for some of the conservation measures proposed within each of the Federal land planning program areas. These conservation measures included actions such as development of sage-grouse specific habitat objectives relative to domestic livestock management, criteria to inform leasing decisions in sage-grouse habitats, and monitoring of sage-grouse and their habitats (BLM 2011a, entire).
In 2013, we, together with the States, chartered a team of sage-grouse and habitat experts to identify the conservation goals for the species. The Conservation Objectives Team (COT) Report was a ground-breaking, collaborative approach to develop rangewide conservation objectives for the sage-grouse, both to inform this finding and to inform the collective conservation efforts of the many partners working to conserve the species (USFWS 2013, entire). The highest level objective identified in the COT Report is minimization of habitat threats to the species so as to meet the objective of the 2006 WAFWA Greater Sage-grouse Comprehensive Conservation Strategy: Reversing negative population trends and achieving a neutral or positive population trend.
The conservation principles of redundancy, representation, and resilience guided the development of the conservation goals, priority areas for conservation, conservation objectives, and measures included in the COT Report (USFWS 2013, p. 12). The COT Report found that satisfying these conservation principles for sage-grouse meant having multiple, geographically distributed populations across the species' range (USFWS 2013, p. 12). The COT Report further stated, “By conserving well distributed sage-grouse populations across geographic and ecological gradients, species adaptive traits can be preserved, and populations can be maintained at levels that make sage-grouse more resilient in the face of catastrophes or environmental change” (USFWS 2013, pp. 12–13).
In particular, the COT Report, using State information, identified the habitats most critical for the conservation of the species, which were described as Priority Areas for Conservation (PAC, Figure 4) (USFWS 2013, entire). Priority Areas for Conservation are “. . . the most important areas needed for maintaining sage-grouse representation, redundancy and resilience across the landscape” (USFWS 2013, p. 13). Identifying PACs ensured that conservation partners direct their efforts to the highest priority habitats. Since the completion of the COT Report, improved habitat mapping and further discussions with the States has resulted in changes to the PAC map in Nevada, Montana, and Utah. For the purposes of this document, we refer to those areas that were added as Important Priority Areas.
As discussed above, in 2010 we concluded that sage-grouse populations were well-distributed across the occupied range, but without the habitat protections provided by adequate regulatory mechanisms, populations were likely to become smaller, fewer, and separated by fragmentation, placing the species at risk of extinction in the future (75 FR 13910, March 23, 2010, p. 13986). Because the 2010 finding indicated that adequate regulatory protections could prevent the need to list sage-grouse, numerous Federal and State agencies undertook planning efforts to improve regulatory mechanisms and conserve sage-grouse into the future. A centerpiece of all of the conservation efforts is the protection of the most important habitats for sage-grouse that are necessary to maintain redundant, representative, and resilient populations (
Using the recommendations provided in the COT Report (USFWS 2013, entire) and the NTT Report (BLM 2011a, entire), the Federal agencies developed conservation strategies to protect the important habitats for conservation. These strategies focus not only on the most important habitats for conservation, but also on conservation objectives to address the greatest threats to the species, as identified in the COT Report (USFWS 2013, pp. 31–52).
While 10 of the 11 States in the range of the sage-grouse updated their State plans to conserve the species by incorporating new information, which is a testimony to their concern and commitment to protect the grouse and its habitats, not all of these plans have been implemented or are regulatory in scope. We will specifically highlight the regulatory conservation actions mandated by the State plans in Wyoming, Montana, and Oregon because they provide the greatest degree of regulatory certainty in addressing potential threats on State and private lands not under the jurisdiction of Federal plans. We appreciate the work that each State has completed, but not all planning efforts met a level of certainty for implementation and effectiveness. We acknowledge that sage-grouse conservation plans have been developed for Colorado, Idaho, Nevada, North Dakota, South Dakota, and Utah that could provide long-term benefits to sage-grouse. For example, the Idaho Plan includes the following measures: Technical and monetary assistance for fire rehabilitation and restoration efforts in areas where wildfire has impacted both State and Federal lands; assistance with implementation of Federal landscape fuels management projects on lands adjacent to Federal lands (such as the extension of fuel break projects onto State lands); development, coordination, and training for Rangeland Fire Protection Associations (RFPAs); and adoption of a general strategy to reduce Idaho Plan ownership of key habitat within Core Habitat Areas through land exchanges with BLM. We encourage all of the States to fully implement their
In this section, we provide a summary of the various conservation programs and efforts put in place at the Federal, State, and local levels that are most important to our analysis of regulatory mechanisms in addressing potential threats to sage-grouse: The Federal plans, State plans in Wyoming, Montana, and Oregon; and the voluntary conservation efforts on private lands provided by SGI and Candidate Conservation Agreements with Assurances (CCAAs). The Wyoming Plan is analyzed based on its 7-year track record of implementation, and SGI is also analyzed based on its accomplishments to date.
The sections below provide an analysis of the implementation and effectiveness of the Federal plans, Montana program, Oregon efforts, and Secretarial Order 3336 pursuant to our Policy for Evaluation of Conservation Efforts (PECE) (68 FR 15100, March 28, 2003). The purpose of PECE is to ensure consistent and adequate evaluation of recently formalized conservation efforts when making listing decisions. The policy provides guidance on how to evaluate conservation efforts that have not yet been implemented or have not yet demonstrated effectiveness. The evaluation focuses on the certainty that the conservation efforts will be implemented and the effectiveness of the conservation efforts to contribute to make listing a species unnecessary. In this finding, we evaluated the certainty that the Federal Plans, and the Montana and Oregon Plans will be implemented into the future and the certainty that they will be effective in addressing threats, based on the best available science and professional recommendations provided in the COT and other scientific literature and reports. We also evaluated the Secretarial Order using PECE, which is discussed below in the
The Federal plans and three State Plans provide protective, regulatory mechanisms for the majority of the most important habitat for sage-grouse. The Federal Plans divide habitat into two habitat management area categories—Priority Habitat Management Areas (PHMAs) and General Habitat Management Areas (GHMAs). Priority Habitat Management Areas largely correspond to PACs (USFWS 2013, p. 13) and State-identified Core Areas (BLM and USFS 2015, entire). The PHMAs are the highest priority for conservation because they contain large, undisturbed expanses of breeding habitat and the highest densities of sage-grouse. The most restrictive conservation measures, such as excluding certain activities and requiring avoidance and minimization measures, apply to 64 percent of the species' breeding habitat designated as PHMAs (USFWS 2015a). The Federal and three State plans protect an additional 26 percent of breeding habitat in GHMAs (USFWS 2015a) that contain fewer leks and sage-grouse than PHMAs, but provide habitat and connectivity between populations. As discussed above in Sage-Grouse Connectivity and Landscape Genetics, connectivity between core population areas has been identified as an important strategy to ensure long-term sage-grouse persistence (Crist
The BLM and USFS sage-grouse planning effort was unprecedented in scope and scale, and represents a significant shift from management focused within administrative boundaries to managing at a landscape scale. This effort also represented a concerted effort by the agencies to balance their multiple-use mandates with conservation objectives. The BLM and USFS completed this effort by issuing amendments or revisions to 98 land management plans governing over half of the occupied range. These land management plans are the principal regulatory documents for the activities allowed on BLM and USFS lands, are grounded in the agencies' organic statutes (
The BLM and USFS have broad authorities to manage the lands and resources within their jurisdiction. The Federal Land Policy and Management Act of 1976 (FLPMA) (43 U.S.C. 1701
Under FLPMA, the BLM is required to establish Resource Management Plans for the management and use of public lands in accordance with the principles of multiple-use and sustained-yield. Similarly, pursuant to the NFMA, the USFS is required to establish plans for the management and use of National Forest System lands in accordance with the principles of multiple-use and sustained-yield. The Federal Plans are the basis for on-the-ground actions that the BLM and USFS undertake and authorize. Decisions in Federal Plans guide future land management actions and subsequent site-specific implementation decisions. Land use plan decisions establish goals and objectives for resource management (desired outcomes) and the measures needed to achieve these goals and objectives (land use allocations for the BLM; Standards and Guidelines for the USFS).
These Federal Plans are regulatory mechanisms. The Federal Plans establish goals and objectives and measures to address the potential
The Federal Plans represent a paradigm shift in western Federal lands management in their focus on maintaining large expanses of the sagebrush ecosystem for the benefit of sage-grouse and many other species. Federal Plans are structured around a layered management approach that aims to preclude or minimize additional surface disturbance in priority conservation habitats, while providing some management flexibility in sage-grouse habitat areas that are less critical for conservation. In addition to these land use allocations and associated conservation actions, the Federal Plans include direction for wildfire and invasive species management, minimization measures, mitigation strategies, monitoring, and adaptive management that provide further conservation benefits for sage-grouse, as discussed below. There are differences across 98 plans as necessary to address differing ecological conditions; however, the general regulatory framework is consistent amongst all the plans. Because of the commitments from the Federal Government to implement these plans and because of the Plans' consistency with the COT Report recommendation for measures to reduce threats, these Federal Plans provide substantial conservation benefits to sage-grouse, now and in the future
Federal Plans mapped approximately 27 million ha (67 million ac) of sage-grouse habitat, of which 14 million ha (35 million ac) were designated as PHMAs, 4.5 million ha (11 million ac) were designated as SFAs (and overlap generally with PHMAs), and 13 million ha (32 million ac) were designated as GHMAs (no habitat was mapped in Washington, as minimal habitat occurs on BLM and USFS land in that State). The Federal Plans authorize and establish allowable resource uses for each of these Management Area designations. The Federal Plans also establish stipulations for certain authorizations to protect resources. Land use allocations of specific activities are generally categorized as:
• Exclusion/Closed: Areas that are not available for development or use of particular resources; or
• Avoidance: Areas to be avoided but may be available for development or use of particular resources with special stipulations; or
• Open: Areas open to development or use of particular resources, although use may be restricted by stipulations.
Using this targeted and tiered approach to habitat conservation, the Federal Plans have a number of components for conserving sage-grouse and their habitats. The primary components of the Federal Plans are a combination of: (1) Land use allocations; (2) human-caused disturbance caps and density limitations; (3) lek buffers; (4) monitoring; (5) adaptive management; (6) mitigation; and (7) a landscape-scale strategy for addressing the threat of fire and invasive grasses.
The BLM, USFS, and other partners recognize the variability in habitat value across sage-grouse habitat, both in terms of habitat characteristics and habitat quality. Priority sage‐grouse habitats are areas that have the highest conservation value to maintaining or increasing sage‐grouse populations. These areas include breeding, late brood‐rearing, winter concentration areas, and where known, migration or connectivity corridors (BLM 2011a, p. 7). The BLM developed a rangewide Breeding Bird Density Map to highlight locations where the highest densities of breeding males were found on leks (Doherty
The Federal Plans focus on land use management within these two management areas (Figure 5). The discussion below analyzes PHMA and GHMA separately to distinguish the different management considerations in the most important habitats (PHMA) and the measures provided in other occupied habitats (GHMA).
On existing leases, the BLM will work with the lessees, operators, or other project proponents to avoid, reduce and mitigate adverse impacts to the extent compatible with lessees' rights to drill and produce fluid mineral resources. The BLM will work with the lessee, operator, or project proponent in developing for the lease an application for a permit to drill to avoid and minimize impacts to sage-grouse or its habitat and will ensure that the best information about the sage-grouse and its habitat informs and helps to guide development of such Federal leases. See the
Fluid minerals land use allocation decisions are more complex than the typical open, avoidance, and closed/exclusion decisions. Allocative decisions within the Federal Plans for fluid minerals can be one of the following:
• Open: These areas are open to leasing with minor to no constraints, subject to existing laws and regulations, and formal orders, as well as any standard terms and conditions.
• Open with moderate constraints: These are areas where it has been determined that moderately restrictive lease stipulations may be required to mitigate impacts. These stipulations include timing limitations and controlled surface uses.
• Open with major constraints: These are areas where it has been determined that highly restrictive lease stipulations are required to mitigate impacts.
• No Surface Occupancy (NSO): These areas are open to leasing, but surface-disturbing activities are precluded. Access to oil and gas deposits would require directional drilling from outside the boundaries of the NSO areas. The NSO areas are also avoidance areas for Rights-of-Way (ROWs); no ROWs would be granted in NSO areas unless there are no feasible alternatives.
• Closed: These are areas where it has been determined that other land uses or resource values cannot be adequately protected with even the most restrictive lease stipulations and appropriate protection can be ensured only by closing the lands to leasing.
In 2010, there were few habitat restrictions specific for sage-grouse for fluid mineral leasing on Federal lands within the range of the species. The new land use allocations in the Federal Plans designating PHMAs as either closed or open with NSO restrictions represent an unprecedented change in the management of areas important for sage-grouse (PHMAs) with fluid mineral potential. These land use allocations are consistent with the COT Report (USFWS 2013, p. 43) recommendations to reduce and eliminate disturbance in PACs. Closing areas to development and requiring NSO with only very limited exceptions, substantially reduces the potential for future disturbance in PHMAs. Considered together, these measures avoid or minimize impacts to fluid mineral development in priority habitat for conservation; this signifies a substantial improvement in the effectiveness of regulatory mechanisms since the 2010 finding.
• The habitat assessment framework (Stiver
• The BLM and USFS will prioritize the following first in SFAs followed by PHMAs outside of the SFAs: (1) The review of grazing permits/leases, in particular to determine if modification is necessary prior to renewal, and (2) the processing of grazing permits/leases. In setting workload priorities, precedence will be given to existing permits/leases in these areas not meeting Land Health Standards, with focus on those containing riparian areas, including wet meadows. The BLM may use other criteria for prioritization to respond to urgent natural resource concerns (
• The NEPA analysis for renewals and modifications of livestock grazing permits/leases that include lands within PHMAs will include specific management thresholds based on sage-grouse Habitat Objectives Table and Land Health Standards (43 CFR 4180.2) and defined responses that will allow the authorizing officer to make adjustments to livestock grazing without conducting additional NEPA analysis.
• Allotments within SFAs, followed by those within PHMAs, and focusing on those containing riparian areas, including wet meadows, will be prioritized for field checks to help ensure compliance with the terms and conditions of the grazing permits. Field checks could include monitoring for actual use, utilization, and use supervision.
• At the time a permittee or lessee voluntarily relinquishes a permit or lease, the BLM and USFS will consider whether the public lands where that permitted use was authorized should remain available for livestock grazing or be used for other resource management objectives.
• Structural range improvements will be managed to benefit or not adversely affect sage-grouse by restricting locations of ranch
Prioritizing the onsite monitoring to the most important areas for sage-grouse consistent with the rangewide monitoring plan, the certainty of implementation is improved because monitoring and management changes will occur in the most important areas for sage-grouse first. The vegetative objectives in the Federal Plans were developed using the best available scientific information, taking into consideration ecological differences across the range of the species. The Federal Plans specifically cite to the literature relied upon to develop these objectives. The Federal Plans commit to implementation of any habitat enhancement projects and other activities to meet these objectives. The monitoring framework is designed to add consistency to this effort and will, with adaptive management, provide additional certainty that measures will be implemented to meet habitat objectives. These changes represent a significant change from having virtually no or only general land health standards for sage-grouse to a system that establishes specific standards for sage-grouse, prioritizes the most important habitats, and targets monitoring to ensure compliance. This framework represents an effective suite of measures that reduces the impacts from improper grazing.
The actions identified for implementation in the SFAs are more restrictive versions of the measures described above for PHMAs. As such, the measures implemented within SFAs are more effective at reducing threats within these important areas. These measures have been determined to be effective because they eliminate or reduce the impacts from new development or improper grazing on Federal lands in SFAs.
Specifically, the Federal Plans contain the following measures that apply in GHMAs:
In PHMA and GHMA, temporary closures will be considered in accordance with several regulations, including Closures and Restrictions (43 CFR subpart 8364); Designated National Area (43 CFR subpart 8351); Use of Wilderness Areas, Prohibited Acts, and Penalties (43 CFR subpart 6302); and Conditions of Use (43 CFR subpart 8341). These regulations help control access to sensitive areas and have been employed strategically in the past to minimize access and disturbance during critical time periods such as spring breeding. These measures ensure that travel management decisions in PHMA and GHMA are made with consideration of sage-grouse conservation needs. These measures help to address concerns with potential disturbance due to travel on Federal lands and will continue to be used by the agencies as needed.
For all States, except Wyoming and Montana, the BLM and USFS have established a 3 percent disturbance cap at two spatial scales
In addition to the percent disturbance cap at the BSU and project scales, the BLM and USFS will use a density cap related to the density of energy and mining facilities during project-scale authorizations. If the disturbance density is greater than an average of 1/259 ha (1/640 ac) in PHMA, the project will either be deferred or co-located in an existing disturbed area (subject to applicable laws and regulations, such as the General Mining Law of 1872, valid existing rights, etc.).
To develop “biologically relevant and socioeconomically practical” lek buffer distances for use in the Federal Plans, the DOI commissioned the USGS to review the scientific information on conservation buffer distances for sage-grouse. The result was the publication of a USGS Open-File Report, entitled
The BLM and USFS may approve actions in PHMAs that are within the applicable lek buffer distance identified above only if the BLM or USFS determine that a buffer distance other than the distance identified above offers the same or greater level of protection to sage-grouse and its habitat. The BLM or USFS will make this determination based on best available science, landscape features, and other existing protections, with input from the local State fish and wildlife agency. The BLM or USFS will explain its justification for determining that the approved buffer distances meet these conditions in its project decision.
For actions in GHMAs, the BLM and USFS will apply the lek buffer distances in Table 3 as required conservation measures to fully address any impacts to sage-grouse identified during the project-specific NEPA analysis. However, if it is not possible to locate or relocate the project outside of the applicable lek buffer distance(s) identified above, the BLM or USFS may approve the project only if: (1) Based on best available science, landscape features, and other existing protections, (
• A specific RDF is documented to be not applicable to the site-specific conditions of the project/activity (
• An alternative RDF is determined to provide equal or better protection for greater sage-grouse or its habitat;
• A specific RDF will provide no additional protection to sage-grouse or its habitat.
While the applicability and overall effectiveness of each RDF cannot be fully assessed until the project level when the project location and design are known, the Federal Plans include the requirement to implement appropriate RDFs and these RDFs are expected to further minimize impact to the species and its habitat. These RDFs were developed based on the COT and NTT conservation objectives and the best professional judgment of BLM and USFS wildlife biologists. For example, any project that includes the development of a pond or similar water feature would require RDFs that direct the design, construction, and maintenance of the pond so that it would not provide habitat for mosquitos that could carry West Nile virus (WNv).
To ensure that the BLM and the USFS are able to make consistent assessments about sage-grouse habitats across the range of the species, this framework lays out the methodology—at multiple scales (broad, mid, fine, and site scales)—for monitoring of implementation and disturbance and for evaluating the effectiveness of the BLM and USFS actions to conserve the species and its habitat. Monitoring efforts will include data for measurable quantitative indicators of sagebrush availability, anthropogenic disturbance levels, and habitat conditions. Implementation monitoring results will allow the BLM and the USFS to evaluate the extent that decisions from their Federal Plans to conserve sage-grouse and their habitat have been implemented. State fish and wildlife agencies will continue to collect population monitoring information, which will be incorporated into effectiveness monitoring as it is made available.
Managing and monitoring sage-grouse habitats are complicated by the differences in habitat selection across the range and habitat use by individual birds within a given season. Therefore, the monitoring framework evaluates multiple habitat suitability indicators to evaluate plan effectiveness. Descriptions of these habitat suitability indicators for each scale are provided in the “
Results from monitoring data will define when habitat objectives are not being achieved, disturbance caps have been breached, and adaptive management triggers have been met (see below). Having a consistent framework for all management units will allow the agencies to track information and trends across management units, which has not been possible in the past. The BLM and USFS have and committed to increased monitoring, and we expect the results to give the agencies valuable data to assist and improve implementation and improve the overall effectiveness of the BLM and USFS plans.
Adaptive management will help ensure that sage-grouse conservation measures in the Federal Plans are effective, and if they are not effective, that corrective actions will be implemented. Each planning area (with the exception of the Lander and North Dakota Plans) has identified adaptive management soft and hard triggers and responses. Soft triggers represent an intermediate threshold indicating that management changes are needed at the project/implementation level to address habitat and population losses. If a soft trigger is met, the BLM will apply more conservative or restrictive implementation conservation measures to mitigate for the specific causal factor in the decline of populations and/or habitats, with consideration of local knowledge and conditions. These types of adjustments will be made to preclude meeting a hard trigger (which signals more severe habitat loss or population declines). Hard triggers represent a threshold indicating that immediate action is necessary to stop a deviation from sage-grouse conservation objectives as set forth in the Federal Plans. Tripping a hard trigger will result in BLM or USFS switching to a more restrictive alternative from the Final Environmental Impact Statement either in whole or in part to address the causal factors (
The Federal Plans will establish a Management Zone Greater Sage-Grouse Conservation Team (hereafter, Team) to help guide the conservation of sage-grouse, within 90 days of the issuance of the Record of Decision. This Team will develop a Management Zone Regional Mitigation Strategy using the BLM's Regional Mitigation Manual as a framework. The Team will also compile and report on monitoring data (including data on habitat condition, population trends, and mitigation effectiveness) from States across the MZs and will use these data to either modify the appropriate Regional Mitigation Strategy or recommend adaptive management actions. Requiring mitigation for residual impacts provides additional certainty that, while impacts will continue at reduced levels on Federal lands, those impacts will be offset to a net conservation gain standard.
As part of the assessment process, Instructional Memorandum (IM) 2014–134 was released August 28, 2014. This IM, in part, provided guidance for the BLM field offices to cooperate with interagency partners to complete FIAT assessments at local scales for five priority landscapes in sage-grouse habitat, which roughly corresponded to PACs in the Great Basin as identified in the COT Report (USFWS 2013, p. 14) (
The Federal Plans provide major new regulatory mechanisms to protect sage-grouse from land use activities on more than half of the occupied range. In 2010, the Federal land management plans did not contain, for the most part, sage-grouse specific measures, and areas important to the species were open to land uses that could disturb habitat (75 FR 13910, March 23, 2010, p. 13982). Since then, the BLM and USFS have amended or revised 98 plans to address threats to the species (BLM and USFS 2015, entire). The Federal Plans exclude or reduce habitat-disturbing activities in PHMAs that contain the most important habitats for conservation. General Habitat Management Areas are still being managed for the benefit of sage-grouse, but BLM and USFS have flexibility to site development or leasing in GHMAs to keep priority areas intact. While some disturbance can occur in the GHMAs, as they contain fewer sage-grouse when compared to PHMAs, protective measures for activities in those areas minimize impacts and require mitigation. The combination of restrictive PHMAs and less restrictive GHMAs provide conservation for sage-grouse on approximately 27 million ha (67 million ac) while still enabling the multiple uses that are part of the BLM and USFS missions. While there are impacts associated with on-going activities, the Federal Plans provide adequate mechanisms to reduce and minimize new disturbance in the most important areas for the species. By following COT Report and NTT guidance and restricting impacts in the most important habitat, the Federal Plans ensure that high-quality sage-grouse lands with substantial populations are minimally disturbed and sage-grouse within this habitat remain protected.
Approximately 37 percent of estimated sage-grouse abundance occurs in Wyoming (Doherty
The Wyoming Plan relies on the protection of important sage-grouse habitats in the State using a suite of avoidance and minimization measures. Important habitats (Core Areas) were identified by the highest densities of males attending leks, and added associated habitats through a scientific process engaging State wildlife experts and local working groups. Core Areas encompass approximately 83 percent of the breeding population of sage-grouse in Wyoming on approximately 24 percent of the total land surface of the State (Budd, Wyoming Wildlife and Natural Resource Trust, pers. comm. 2015). Additional connectivity areas were identified for protection to ensure population movements. Protective measures associated with the Wyoming Plan (described below) do not extend to lands located outside the identified Core Areas but that are still within occupied sage-grouse habitat. In non-Core Areas, the minimization measures are implemented to maintain habitat conditions such that there is a 50 percent likelihood that leks will persist over time (Wyoming Game and Fish Department 2009, pp. 30–35). While impacts to sage-grouse are possible in non-core habitats, the majority of primary habitats necessary for long-term conservation of sage-grouse in Wyoming are included in the identified Core Areas. Core Area maps are reviewed and adjusted every 5 years to allow for the incorporation of new data that ensures the most important areas for sage-grouse receive protections. For example, the State of Wyoming reviewed the Plan in 2015 and added 58,191 ha (143,794 ac) to the Core Areas.
The key component of the Wyoming Plan is the application of State regulatory measures associated with the Wyoming Plan on all lands in Wyoming (6 million ha (15 million ac)) as any project requiring a State permit must meet the conditions of the strategy regardless of land ownership. Specifically, the Wyoming Plan applies to all activities that require permits from Wyoming's Industrial Siting Council (ISC) (Wyoming E.O. 2015–4, entire). The Federal Plans in the State incorporate the Wyoming strategy, thereby ensuring implementation of the strategy on Federal land surfaces and subsurface regardless of the need for a State permit (see further discussion below). The completion of the Federal plans also facilitates greater coordination between the State and Federal agencies in implementing and monitoring the Wyoming Plan. This addition to the Wyoming Plan further increases the value of this effort in conserving sage-grouse by covering all lands in the State with a single regulatory framework to reduce affects to sage-grouse in the most important habitats in the State. Therefore, the strategy conserves sage-grouse through an effective regulatory mechanism for conservation.
The Wyoming Plan first encourages projects to be re-located outside of Core Areas by reducing restrictions in non-Core Areas for development activities. Where projects cannot be relocated, the Plan requires a combination of restricted development densities, development disturbance caps, seasonal restrictions, and lek buffers to minimize habitat disturbance within Core Areas. Surface disturbance is limited to 5 percent within Core Areas reducing fragmentation and degradation of habitat (Wyoming E.O. 2015–4, Attachment A, p. 6; Wyoming E.O. 2015–4, Attachment B, p. 5). While 5 percent is greater than the 3 percent used in other States, habitat disturbance monitoring in Wyoming is conducted at a much finer scale and is, therefore, more inclusive in the number and extent of disturbances measured. Additionally, Wyoming includes natural disturbances, such as wildfire, in the
Disturbance (including all anthropogenic and natural disturbances) is tracked via a geospatial database (measuring disturbance at 1 m (3.3 ft). Including all disturbances with such precision ensures that all potential impacts to sage-grouse, regardless of source, are being considered prior to authorizing new development. Additional conservation is gained through the enforcement of noise restrictions at the perimeter of leks, which minimizes disturbance to birds visiting the leks (Wyoming E.O. 2015–4, Attachment B, p. 8; Patricelli
Outside of core-habitat, there are NSO restrictions within 0.4 km (0.25 mi) of leks to minimize impacts to sage-grouse (E.O. 2015–4, Attachment B, p. 6), and activities within 3.2 km (2 mi) of a lek are restricted during the breeding season. These relaxed stipulations encourage development to move outside of Core Areas, while still providing some protections to birds in non-Core Areas. While impacts to birds and their habitats may occur outside of Core Areas, only about 17 percent of the sage-grouse bird density occurs in those areas (Budd, Wyoming Wildlife and Natural Resources Trust, pers. comm. 2015), minimizing impacts to sage-grouse and allowing for the continuation of the economies that support the State.
In 2010, we analyzed the Wyoming Plan and noted that it included measures that if fully implemented could ameliorate threats to sage-grouse (75 FR 13910, March 23, 2010, pp. 13974–13975). We now have data that shows how implementation has avoided and minimized impacts in core habitats. Since 2012, the majority of the 600 projects proposed in Core Areas and reviewed by the State complied with the criteria of the Wyoming Plan. Projects that added additional surface disturbance within Core Areas were minimized or co-located with existing disturbance. Less than 8 ha (20 ac) of new disturbance has occurred within Core Areas since 2012 (USFWS 2014b). Other applications were denied that would negatively affect sage-grouse, including a wind lease application on State trust lands (USFWS 2014b). The number of oil and gas wells permitted in Core Areas has also declined as industry seeks to avoid conflict with sage-grouse. Between 2006 and 2012, vertically drilled single well permits declined 65 percent, while directionally and horizontally drilled wells, from outside the Core Areas, increased by 66 and 1,337 percent, respectively (USFWS 2014b). This change in the number and nature of oil and gas well permits further demonstrates the efficacy of the Wyoming Plan. Other industries, such as mining, have initiated restoration efforts to remove existing disturbance and improve habitat for sage-grouse. These data demonstrate the efficacy of the Wyoming Plan in removing and reducing impacts to sage-grouse from development activities.
The Federal Plans in Wyoming have incorporated the Wyoming Plan Core Area strategy. Core habitats designated by the State have been identified as PHMA on BLM and USFS lands, while non-core habitats are designated as GHMA. Both the BLM and USFS have adopted the more precise disturbance measurements developed by the State at 5 percent. With the exception of the fluid and non-energy leasable mineral programs, the Federal Plans in Wyoming are the same as with other States. However, these modifications were made to expand the protections already implemented by the State to Federally managed lands.
The fluid mineral designation in the Federal Plans in Wyoming is different than in the other Federal Plans throughout the range, which was necessary to adopt the Wyoming Plan. For fluid minerals in Wyoming, PHMAs are designated Controlled Surface Use, which means these areas are open to leasing, but would require proposals for surface-disturbing activities only be authorized in accordance with the controls or constraints specified in the Wyoming Plan. For non-energy leasable minerals, PHMAs are open to non-energy leasable minerals, but are subject to measures intended to minimize impact in important (core) areas pursuant to the Wyoming Plan.
A recent analysis of the Wyoming Plan predicted that 83 percent of the landscape within core area boundaries supports increasing or stable populations of sage-grouse (Burkhalter
The Wyoming Plan has been in place for 8 years, and has demonstrated its conservation value by protecting areas identified as important to sage-grouse conservation. As described above, development has been removed or minimized in Core Areas, protecting intact habitats from fragmentation and degradation. Carefully controlled development within Core Areas has had minimal to no impact to the sage-grouse as demonstrated by the increasing populations within Core Areas (Burkhalter
State and Private lands account for 42 percent of the sage-grouse occupied range. Plans developed by States for sage-grouse vary widely in the nature of the protective measures, with some measures being regulatory and some being voluntary. State Plans in three States—Wyoming, Montana, and Oregon—contain regulatory measures
Since 2010, all States within the range of the species, except for California, have drafted, finalized, or implemented conservation plans for the sage-grouse. These plans take different approaches, but, in general, they identify important conservation objectives for sage-grouse, and provide mechanisms to incentivize conservation. While 10 of the 11 States in the range of the sage-grouse updated plans to conserve the species by incorporating new information, which is a testimony to their concern and commitment to protect the grouse and its habitats, not all of these plans have been fully implemented or regulatory in scope. As discussed above, we will assess the conservation actions mandated by the State plans in Wyoming, Montana, and Oregon because they provide the greatest degree of regulatory certainty in addressing potential threats on State and private lands not under the jurisdiction of Federal Plans. We appreciate the work that each State has completed, but we could not include all planning efforts in other States in our analysis because they did not meet a level of certainty for implementation and effectiveness. Regardless of the nature of State conservation efforts, we reviewed and considered the conservation efforts developed and implemented by the States consistent with the Act (16 U.S.C. 1533(b)(1)(A)). A description of the other applicable State laws is included below in
In the previous section, we describe in detail how the Wyoming Plan addresses the issues of habitat loss and fragmentation and disturbance to sage-grouse. The Montana Plan closely follows the structure of the Wyoming Plan and, similarly, uses information and guidance from the COT Report to identify and reduce impacts associated with threats to sage-grouse in Montana. The Montana Executive Order also identifies scientifically valid performance standards based upon number of males at leks to ensure that the Montana Plan actions are effective; monitoring protocols are also included. The Montana Plan specifies adaptive management strategies in response to this monitoring information. Implementation of the Montana Plan will occur immediately in response to future and additional actions that occur in sage-grouse habitat; full implementation of the Montana Plan is expected by January 2016.
The Montana Plan includes similar requirements as those identified in the Wyoming Plan including the following: Use of a 5 percent disturbance cap in Core Areas; allowance of only one disturbance (well pad, grouped impacts) per section (259 ha (640 ac)) for oil and gas and mining; prohibition of sagebrush eradication or conversion; and lek buffers and disturbance buffers in both Core Areas and general habitats. For a complete discussion of why these methods are effective in supporting viable sage-grouse populations, please see the previous discussion of the Wyoming State and Federal Plan, above.
The Montana State Legislature recently passed, and the Governor signed, the Montana Sage-Grouse Protection Act during the 2015 legislative session. This Act ensures that critical funding and support are available for necessary sage-grouse conservation efforts in the future. This Act funds staff resources to implement the conservation program, and includes a revolving conservation fund with an initial balance of 10 million dollars. This funding authorization is directly tied to the implementation of the E.O. and provides certainty of implementation. The Governor also signed the Montana Greater Sage-Grouse Stewardship Act, which establishes the Montana Sage-Grouse Oversight Team and provides grant-based funding for voluntary sage-grouse conservation efforts. Unless specifically excluded, all State actions (including those prescribed for sage-grouse conservation) require review under the Montana Environmental Policy Act, which is analogous to the National Environmental Policy Act at the State level. Given this commitment from the State, there is certainty that the Montana Plan will be implemented and effective.
In addition to the Montana Plan, private landowners in Montana have worked with Montana Fish, Wildlife, and Parks to enroll nearly 80,000 ha (200,000 ac) in 30-year sagebrush leases. Montana Fish, Wildlife, and Parks provided 1.2 million dollars for these leases where landowners agreed not to eliminate sagebrush on the enrolled acres (Wightman, Montana Fish, Wildlife, and Parks, 2015, pers. comm.).
The Oregon Plan includes similar provisions to those identified in the Wyoming Plan and Montana Plan. Based upon the nature and extent of threats to sage-grouse in Oregon and information in the 2010 Finding and COT Report, the Oregon Plan includes limitations on disturbance in Core Areas through disturbance caps and an avoidance and minimization strategy. Actions permitted through county actions (such as a new subdivision or county road) as well as actions permitted through State agencies (such as a new large-scale energy or utility project) are both subject to the Plan as
Many of the Oregon Plan measures are similar or complementary to those included in the Federal Plans. This aligned framework of tools, rules, and protocols across local, State, and Federal processes will ensure that coordinated mitigation and voluntary actions conserve the species across all land ownerships in Oregon. It also creates the transparency and credibility necessary for public support of the State's strategy.
The Oregon Plan identifies several State agencies as well as specific staffing and funding requirements necessary for full implementation of the Oregon Plan. In addition to gaining public support and identifying necessary staffing, financial support has been secured through the Oregon Watershed Enhancement Board, which has committed 10 million dollars over the next 10 years. These funds are used to implement aspects of the Oregon Plan that manage impacts from fire and invasive species. In addition, 3.34 million dollars of new funding for sage-grouse conservation was appropriated by the Oregon Legislature for the 2015 through 2017 funding cycle. These commitments ensure that the Oregon Plan will be successfully implemented for the conservation of the species.
The Sage Grouse Initiative (SGI) works with landowners and other partners to design and deliver voluntary conservation practices, including grazing systems and conservation easements, on private lands to ameliorate impacts to sage-grouse while improving the sustainability of working ranches. Private lands account for 39 percent of sage-grouse occupied range. Habitat under private ownership may be at greater risk of conversion through development than neighboring Federal land. The Sage Grouse Initiative's past, present, and future contributions are considerable because, while private lands are less than half of the sage-grouse occupied range, the potential biological value of those lands for various phases of the species' life history is high, as is their potential conservation value. The NRCS carries out conservation through a variety of authorities and tools. We have identified specific activities that are directly benefiting sage-grouse under SGI (Table 4).
Fence modification is another aspect of SGI restoration. Marking and
The SGI uses direct seeding to restore habitat through the addition of native species. Through grazing systems, re-vegetating former rangeland with sagebrush and perennial grasses and controlling invasive weeds, SGI has enhanced rangeland health inside PACs (NRCS 2015a, p. 2).
Since 2010, the NRCS, through the SGI, has invested approximately 425.5 million dollars, with 76 percent of investments occurring within PACs (Table 4). To date, 1,129 ranches have participated in the SGI, across all 11 States in the species' range (NRCS 2015a, p. 1). Through the 2014 Farm Bill, NRCS will continue and accelerate its efforts, ensuring a durable and increasingly targeted conservation effort on private lands in sage-grouse country (NRCS 2015a, p. 29; NRCS 2015b, p. 6). Starting in 2015, NRCS will add 198 million dollars to continue sage-grouse conservation on private lands in the future (NRCS 2015a, p. 29; NRCS 2015b, p. 6).
Where they have been implemented, these conservation efforts have addressed certain potential threats to sage-grouse, such as urban and exurban development, infrastructure, and improper grazing (defined for the purposes of this analysis as grazing at an intensity or in ways that impair ecosystem functions of the sagebrush ecosystem) [See
Over the past 2 years, we have prioritized Candidate Conservation Agreements with Assurances (CCAAs) to focus conservation on non-Federal lands for the benefit of sage-grouse. Candidate Conservation Agreements with Assurances provide assurances to both landowners and the Service that conservation will continue into the future without resulting in a regulatory burden on the landowners involved. Through these agreements, landowners agree to avoid certain activities that may be harmful to sage-grouse, or to undertake activities on their property that benefit sage-grouse (
Candidate Conservation Agreements operate through tailored conservation strategies that specify required activities that will benefit sage-grouse. Although individual agreements vary, the focus is always on improving sage-grouse habitat or populations. Through CCAAs, landowners may restore existing degraded sagebrush to provide habitat for sage-grouse. They may also create new habitat or simply, as with conservation easements, protect existing habitat for the benefit of the species. As an example, landowners enrolled in the Oregon CCAA have agreed to maintain contiguous habitat by avoiding further fragmentation. The objective for this required conservation measure is for no net loss in: (1) Habitat quantity (as measured in acres) and (2) habitat quality (as determined by the ecological state). Additionally, every enrolled landowner must have at least one conservation measure in place to address each threat identified during the baseline assessment of individual properties.
Candidate Conservation Agreements are voluntary agreements. As such, it is possible for landowners to terminate these agreements. However, based on previous experiences with existing CCAAs for a variety of other species (Anderson and Moore, USFWS, 2015, pers. comm.), we have found that landowners generally do not withdraw from these agreements. Of the 34 CCAAs the Service has finalized nationwide for a variety of species, 32 are still in effect and 2 expired based on the term of the agreement, indicating that landowners continue to implement CCAAs following finalization of the agreements (Anderson and Moore, USFWS, 2015, pers. comm.). Landowners commit to beneficial actions that they are willing to implement to receive the assurances of no further regulatory requirements if the species would become listed. In addition to CCAAs, we work with private landowners through the Partners for Fish and Wildlife Program through Private Landowner Agreements to benefit species and their habitats. A past study on the retention of restored wetlands found that the vast majority of landowners continued to implement the practices from their agreements well after the agreement ended (Fairchild 2004, entire). Further, over the last decade, in an 8-State area roughly equivalent to the Rocky Mountain sage-grouse range, the majority of landowners completed their agreements and continued practices after the agreements were completed (Johnson, USFWS, 2015, pers. comm.). Habitat loss and degradation were identified as threats to the species in 2010; through efforts such as these, sage-grouse habitat remains available to the species. Given the ongoing fidelity these efforts to conserve sage-grouse and its habitat, along with our previous experiences with other species, we conclude that there is sufficient certainty that existing CCAAs will continue to be implemented into the future.
On January 5, 2015, the Secretary of the Interior signed Secretarial Order 3336, Rangeland Fire Prevention, Management, and Restoration (Secretarial Order), that provides guidance on wildfire management in the sagebrush ecosystem (Department of the Interior (DOI) 2015b, entire). The Secretarial Order places a priority on “protecting, conserving, and restoring the health of the sagebrush ecosystem and, in particular, sage-grouse habitat, while maintaining safe and efficient operations,” and allocates fire resources and assets associated with wildfire to reflect that priority. The Secretarial
Since 2010, there have been several major changes in the regulatory mechanisms that minimize impacts to sage-grouse and their habitats. Foremost among these are the adoption of new Federal Plans specifically tailored to conserving sage-grouse over more than half of its occupied range. These Federal Plans now include substantial provisions for addressing activities that occur in sage-grouse habitats and affect the species, including those threats identified in 2010 as having inadequate regulatory measures. Aside from addressing specific activities, the Federal Plans include provisions for monitoring, adaptive management, mitigation, and limitations on anthropogenic disturbance to reduce impacts authorized in sage-grouse habitats. The Federal Plans are the foundation of land-use management on BLM and USFS managed lands. We are confident that these Federal Plans will be implemented and that the new changes, which are based on the scientific literature, will effectively reduce and minimize impacts to the species and its habitat.
In addition to the Federal Plans, the BLM and USFS have provided new policy guidance and management direction for the management of wildfire and invasive plant in the sagebrush ecosystems. The Secretarial Order establishes new, overarching policy direction for DOI and its wildfire prevention and suppression efforts by prioritizing “protecting, conserving, and restoring the health of the sagebrush ecosystem and, in particular, sage-grouse habitat, while maintaining safe and efficient operations.” The Secretarial Order also requires that DOI allocate its wildfire resources and assets in ways that fulfill the priority of protecting, conserving, and restoring the health of the sagebrush ecosystem. The Secretarial Order aims to reduce the size, severity, and cost of suppressing wildfire in sage-grouse habitats by reducing the spread of invasive plants and prioritizing resources to ensure that suppression efforts are effective.
Further, 10 of the 11 States within the occupied range of the sage-grouse have revised and adopted sage-grouse conservation plans. State sage-grouse conservation plans in Wyoming, Montana, and Oregon contain regulatory mechanisms that minimize impacts to the species and its habitat. Most notably, the Wyoming Plan has been in place since 2008 and has effectively minimized impacts within core habitats, protecting the highest density areas for the species within the State. The Montana and Oregon State Plans use proven conservation measures including disturbance caps, density restrictions, and lek buffers to minimize disturbance to important habitats. In combination, the Federal and three State plans cover 90 percent of the sage-grouse breeding habitat where they provide regulatory mechanisms that reduce potential adverse effects to sage-grouse. These State and Federal Plans, together with the private lands conservation provided by SGI and CCAAs, represent a substantial increase in sage-grouse conservation since 2010. These Plans and private land efforts provide conservation for sage-grouse now and into the future and ensure that the most important habitats will remain distributed across the landscape to support the populations identified as critical to the long-term conservation of the species.
Section 4 of the Act (16 U.S.C. 1533) and implementing regulations (50 CFR 424) set forth procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. The Act defines an “endangered” species as “any species which is in danger of extinction throughout all or a significant portion of its range,” and a “threatened” species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range” (16 U.S.C. 1532(6), (20)). Under section 4(a)(1) of the Act, we may determine a species warrants listing as endangered or threatened based on any of the following five factors:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
In making this finding, we discuss below information regarding the status and potential threats to the sage-grouse in relation to the five statutory factors provided in section 4(a)(1) of the Act. Our evaluation of potential threats is based on information provided in the relevant petitions, information available in our files, and other sources considered to be the best scientific and commercial information available, including published and unpublished studies and reports. In considering what factors might constitute threats to the species, we must look beyond the mere exposure of the species to the factor to determine whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure and the species responds negatively, the factor may be a threat to the species and we then attempt to determine if that factor rises to the level of a threat, meaning that it may drive or contribute to the risk of extinction of the species such that the species warrants listing as an endangered or threatened species as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively is not sufficient to compel a finding that listing is warranted; we require evidence that the threats, either alone or when combined, are significant, in that they act on the species to the point that the species meets the definition of an “endangered species” or “threatened species” under the Act.
In the 2010 finding, we determined that the greatest threat to the species was habitat loss and fragmentation (Factor A) due to a variety of causes, including but not limited to, energy development, infrastructure, invasive species, and wildfire (75 FR 13910, March 23, 2010, p. 13986). Sagebrush habitats were becoming increasingly degraded and fragmented due to the impacts of multiple threats, including direct conversion, urbanization, infrastructure such as roads and power
As noted in 2010, fundamental characteristics of sagebrush landscapes have changed since Euro-American settlement (Knick and Connelly 2011, p. 7). Very little of the extant sagebrush is undisturbed, with up to 50 to 60 percent having altered understories or having been lost to direct conversion (Knick
The biology of sagebrush and the ecology of the sagebrush ecosystem makes restoration of disturbed areas very difficult and processes to restore sagebrush habitat are relatively unproven (Knick
Because of the challenges with sagebrush restoration, management efforts in sagebrush ecosystems are usually focused on habitat maintenance (Miller
In 2010, we evaluated the effect of nonrenewable energy development on sage-grouse and concluded that the development and related infrastructure were substantial contributors to habitat loss and fragmentation in the past, and that it would continue into the future, particularly in the Rocky Mountain portion of the species' range. We also found that regulations addressing nonrenewable energy development were inadequate at that time to address this threat. It was the lack of regulatory mechanisms that led us to conclude this nonrenewable energy development would continue at rates similar to or greater than historical rates of development. The 2010 finding concluded that habitat fragmentation, caused in part by nonrenewable energy development, and inadequate regulatory mechanisms were significant threats to the species, then and into the foreseeable future, such that listing was warranted under the Act (75 FR 13910, March 23, 2010, pp. 13986–13988).
Nonrenewable energy development includes the exploration, construction, and drilling of wells and installation of supporting infrastructure needed to extract and transport oil, natural gas, coal, coal-bed natural gas, coal-bed methane, and other types of gas. Nonrenewable energy development begins with exploratory surveys and the construction of access roads and well pads, followed by drilling, extracting, and transporting the energy reserves along roads and pipelines. Additional infrastructure needed for nonrenewable energy development often includes compressor stations, pumping stations, electrical generators, and power lines (Connelly
Nonrenewable energy development has occurred in sage-grouse habitats since the late 1800s (Connelly
Nonrenewable energy development can remove and fragment sagebrush habitats (Factor A). Well pads vary in size from 0.10 ha (0.25 ac) for coal-bed natural gas wells to greater than 7 ha (17.3 ac) for deep gas wells and multi-well pads (Connelly
The reduction and fragmentation of sagebrush habitats can decrease sage-grouse abundance and reduce the distribution of sage-grouse across the landscape (Knick
Sage-grouse avoid habitats near non-renewable energy developments, including important wintering habitats and leks (Dzialak
Nonrenewable energy resources are the largest source of energy worldwide, and demand for these resources could increase by up to 1.3 percent annually in the United States and 50 percent worldwide by the year 2030 (National Petroleum Council 2007, p. 46; Naugle
In 2010, we assessed impacts to sage-grouse and their habitat based on the portion of occupied range where a nonrenewable energy project was occurring and where there was increased potential for future development (75 FR March 1310, March 23, 2010, pp. 13942–13948). This approach was based on the best available GIS data at that time but may have overestimated some effects, because we had less precise information regarding areas of high oil and gas development potential and we measured impacts against all lands within the occupied range.
For this status review, we used peer-reviewed and published methodologies (Copeland
Our analysis indicates that the Federal Plans, the Wyoming Plan, and the Montana Plan are reducing the exposure of the sage-grouse to nonrenewable energy, as measured by the portions of the Population Index and breeding habitat, in MZs I and II, the two MZs at greatest risk of future nonrenewable energy development (Table 5). Without the regulatory mechanisms in MZ I, 28 percent of the Population Index and 21 percent of the breeding habitat could be affected by nonrenewable energy development. Without regulatory mechanisms in MZ II, 27 percent of the Population Index and 25 percent of the breeding habitat could be affected (Table 5). However, with the regulatory mechanisms provided by the State and Federal plans, the risk of nonrenewable energy development decreases. With regulatory mechanisms, 17 percent of the Population Index and 14 percent of the breeding habitat could be exposed to nonrenewable energy development in MZ I, and 8 percent of the Population Index and 9 percent of the breeding habitat could be exposed to nonrenewable energy development in MZ II. Our analysis shows that the State and Federal regulatory mechanisms reduce the risk of nonrenewable energy exposure to the Population Index and breeding habitat by more than 35 percent in MZ I and more than 60 percent in MZ II.
To summarize, our analysis quantifies that without regulation a high proportion of the Population Index and breeding habitat in MZs I and II could be exposed to and potentially negatively affected by nonrenewable energy development. However, with the regulatory mechanisms enacted since 2010, the potential risk from nonrenewable energy development is substantially reduced in MZs I and II (Table 5). Future impacts to sage-grouse from new development could vary based on other factors, such as economic markets, technologies, densities, proximity to existing development, and the location of new development; however, our results show that the Federal and State regulatory mechanisms in MZs I and II reduce habitat loss and fragmentation due to nonrenewable energy development. The next section will discuss these conservation efforts, including those regulatory mechanisms designed to address the effects of nonrenewable energy development and how they ameliorate this potential threat.
Since 2010, State and Federal agencies have worked collaboratively to develop regulatory mechanisms, that is, legally binding and enforceable sage-grouse conservation measures, as well as other nonregulatory conservation efforts, to reduce or eliminate the potential threat of new nonrenewable energy development to sage-grouse and its habitat. Those efforts are discussed in detail below.
The Wyoming Plan provides regulatory mechanisms to reduce impacts associated with energy development on all lands within Core Areas. The Wyoming Plan features development stipulations to guide and regulate development within the Core Population Areas to avoid as much as possible, but, if avoidance is not possible, to minimize and mitigate, impacts to sage-grouse and its habitat (See
The Montana Plan also provides regulatory mechanisms very similar to those described above for Wyoming that reduce impacts from nonrenewable-energy development. Montana's State plan includes controlled surface use, restrictions on density of development, seasonal and noise restrictions, and lek buffers. Similar to the Wyoming Plan, it is designed to reduce impacts associated with energy development in Core Areas on State lands and private lands where a State authorization is required (Montana E.O. 10–2014, entire; see
The Utah Executive Order requires that the Utah Division of Oil Gas and Mining coordinate with the Utah Division of Wildlife Resources prior to issuing energy development permits. Further, the Plan directs the Utah Division of Oil, Gas, and Mining to implement recommendations provided during that coordination that require avoidance and minimization measures on State and private lands consistent with the conservation plan. These measures are subject to the statutory requirements to protect rights on private property and avoid waste of the mineral resource.
To summarize, since the 2010 finding, States have undertaken considerable effort to reduce the impact of nonrenewable energy development on sage-grouse and efforts are consistent with the recommendations in the COT Report (USFWS 2013, pp. 43–44). State Plans in Wyoming and Montana provide regulatory mechanisms that direct
The Federal Plans recognize valid existing subsurface rights to nonrenewable energy resources, but still reduce impacts to sage-grouse by requiring the agencies to work with lessees, operators, and project proponents to follow an avoidance, minimization, and mitigation approach subject to applicable laws (30 U.S.C. 226(p) and 43 CFR 3162.3). The BLM estimates that approximately 10 percent of all habitat is currently leased rangewide (Carmen, BLM, 2015, pers. comm.). According to BLM's analysis, varying proportions of PHMA are leased across the range of the species: 20 percent in North Dakota; 17 percent in Colorado; 14 percent in Wyoming; 4 percent in Utah; and 2 percent in Montana (Carmen, BLM, 2015, pers. comm.). The Federal Plans provide coordinated monitoring strategies of disturbance caps. In response to monitoring, development allowed under the Federal Plans may be adjusted based on adaptive management criteria to provide an immediate, corrective response to any identified triggers for population or habitat declines. While the development of some valid existing rights may continue, these provisions provide a backstop for other disturbance if adaptive management triggers are exceeded.
In summary, the Federal and three State Plans include closure or NSO restrictions for all PHMAs (except in Wyoming), and limit exceptions to instances where the activity will have no direct, indirect, or cumulative effect on sage-grouse or sage-grouse habitats, or is an alternative action for activities on a nearby parcel and would provide a clear conservation gain to sage-grouse. In GHMAs, Federal Plans dictate that project proponents avoid, minimize, and mitigate impacts from nonrenewable energy development (see
In the 2010 Finding, we determined that nonrenewable development was a threat to sage-grouse due to the habitat loss and fragmentation it caused. Current information indicates that the global demand for nonrenewable energy resources will continue and will likely increase in sage-grouse habitats through the year 2030. Nonrenewable energy development can negatively affect sage-grouse individuals and populations by reducing and fragmenting sagebrush habitats and by disturbing individual sage-grouse through increased noise and behavioral avoidance of infrastructure and human activity. Nonrenewable energy development could also act cumulatively with other potential threats to increase habitat loss and fragmentation caused by invasive plants, and may increase predation or disease. Our analysis indicates that regulatory mechanisms reduce the risk of nonrenewable energy exposure to the Population Index and breeding habitat by more than 35 percent in MZ I and more than 60 percent in MZ II, the areas with the greatest potential for nonrenewable energy development. State and Federal Plans emphasize protection of the most important habitats from habitat loss, habitat fragmentation, and disturbance, ensuring that large, contiguous expanses of habitat will remain to support sage-grouse populations. Rangewide, the Federal Plans, Wyoming Plan, and Montana Plan reduce impacts from nonrenewable energy development on approximately 90 percent of the modeled breeding habitat (see
In 2010, we evaluated the effect of infrastructure (including roads, railroads, power lines, communication towers, and fences) on sage-grouse and concluded that it was a substantial contributor to habitat fragmentation throughout the species' range and that fragmentation from this source would increase in the future. We also found that infrastructure causes direct mortality from collisions and provides perches for predators. We further found that the regulations governing the location and installation of infrastructure were inadequate to address these threats. The 2010 finding concluded that habitat fragmentation, caused in part by infrastructure, and inadequate regulatory mechanisms to address the negative effects of infrastructure were significant threats to the species and likely to continue or increase into the future such that listing was warranted under the Act (75 FR 13910, March 23, 2010, pp. 13986–13988).
The increasing expansion of human settlement into the western United States has led to an increase in demand for natural resources and the necessary infrastructure to support human development. Development of roads, railroads, power lines, communication towers, and fences can result in habitat loss and fragmentation, and can cause sage-grouse habitat avoidance. These types of infrastructure can also provide sources for the introduction and propagation of invasive plants, increase fire risk, and increase concentrations of predators.
The physical footprint of existing infrastructure has directly impacted
The primary impact of infrastructure is habitat loss and fragmentation (Factor A). Other impacts associated with infrastructure are direct mortality from strikes (Beck
Since 2010, a number of landscape-scale efforts have been undertaken to reduce impacts from existing and future infrastructure to sage-grouse across the range that are consistent with the recommendations in the COT Report (USFWS 2013, pp. 51–52). Those efforts include Federal Plan amendments, State Plans, SGI projects, and CCAs.
The potential threat of new infrastructure has changed substantially since the last status review. In 2010, we found habitat fragmentation, due in part to infrastructure, to be a threat to the species, and regulatory mechanisms were not sufficient to address that threat into the future. Since then, regulatory mechanisms provided by Federal Plans reduce potential future infrastructure on more than half the species' range by eliminating or capping new development in important sagebrush habitat and by implementing project design features to minimize impacts (
In the 2010 finding, we concluded that agricultural conversion of sage-grouse habitat was one of the primary causes of habitat loss and fragmentation (75 FR 13910, March 23, pp. 13924–13926). Agricultural conversion describes the removal of sagebrush rangelands to create tilled agricultural crops or re-seeded exotic grass pastures (Schroeder and Vander Haegen 2011, p. 519; Wisdom
In the past, approximately 11 percent of the sage-grouse's historical range was converted to agriculture, with 32 percent of the entire Columbia Basin (MZ VI) and 19 percent of the entire Great Plains (MZ I) converted to agriculture (Knick
By reducing and fragmenting sage-grouse habitats, agricultural conversion may reduce sage-grouse populations (Smith
Although agricultural croplands and pasturelands do not provide suitable habitat, sage-grouse may feed on irrigated croplands, particularly during the late brood-rearing period when other native plant foods have matured and dried (Connelly
Rates of agricultural conversion likely slowed and will continue to slow because the most productive sagebrush habitats have already been converted to croplands or pasturelands (Baker
To more precisely evaluate the potential risk to sage-grouse from future agricultural conversion, we compared a new cropland suitability model (Lipsey
The cropland suitability model was developed only for the Great Plains (MZ I), and not for the Columbia Basin (MZ VI) or the Snake River Plain (MZ IV), where agricultural conversion also occurred, due to the limited availability of land cover data, the small size of the Columbia Basin (MZ VI), and differences in the way sage-grouse use agricultural fields between these three MZs. Additionally, more of the Columbia Basin (MZ VI) has already been converted to cropland (Knick
Our comparison of the cropland risk model and the Population Index model showed that the majority of the sage-grouse Population Index overlaps with sagebrush habitats in MZ I that have a low probability of being converted to agriculture (Lipsey
Although some sage-grouse in MZ I could be exposed to agricultural conversion in the future, 87 percent of the Population Index are not likely at risk from agricultural conversion. Although this result contradicts other sources of information that postulated a greater risk to sage-grouse from future agricultural conversion (RISCT 2012, p. 7; USFWS 2013, pp. 16–29), this analysis quantitatively determined that the risk of exposure to future agricultural conversion is low in MZ I. Because the risk of conversion is greatest in MZ I, a portion of MZ IV in the Snake River Plain in Idaho and the Columbia Basin in Washington (MZ VI) would likely have lower percent overlap between sage-grouse breeding populations and areas likely to be converted to agriculture. With improved land cover datasets, the cropland suitability model could be expanded to the other MZs to test this assumption. However, the overlay analysis indicates that the potential for agricultural conversion is low in the Great Plains (MZ I), and there is no information to indicate that the risk to sage-grouse would be greater in any other MZ.
Since 2010, a number of conservation efforts have been implemented to reduce the risk of new habitat loss due to agricultural conversion or to address effects from historical agricultural conversion. These include the NRCS efforts with private land owners and other State and Federal Plans or programs. As discussed below, these conservation efforts are relevant to the potential threat of agricultural conversion.
Conservation easements are voluntary agreements between landowners and land trusts, the NRCS, or other organizations and agencies that maintain the easement in private ownership to benefit natural resources, often in perpetuity. The conservation easements carry binding and enforceable restrictions on development and other activities, and landowners may be reimbursed. Conservation easements may permanently protect sagebrush habitat from ex-urban development or agricultural conversion. The NRCS estimates that, since 2010, approximately 183,013 ha (451,884 ac) have been protected by conservation easements across the overall range of the sage-grouse (NRCS 2015a, p. 6). Conservation easements effectively block the loss and fragmentation of sage-grouse habitats by prohibiting ex-urban development and agricultural conversion on the easement lands and were recommended in the COT Report (USFWS 2013, pp. 48, 50). Approximately 79 percent of the conservation easements are located inside PACs, and 94 percent of the easements provide permanent protection against future agricultural conversion and ex-urban development (NRCS 2015a, p. 8). Although SGI easements address a variety of potential impacts to sage-grouse, including
The 2014 Farm Bill's Sodsaver provision also reduces habitat loss and fragmentation from agricultural conversion in Montana, North Dakota, and South Dakota (MZ I) (NRCS 2015a, p. 3). The Sodsaver provision discourages agricultural producers from converting native vegetation to annually tilled crops by reducing their insurance subsidies and disaster assistance if they convert native habitats into croplands (NRCS 2015a, p. 4). The NRCS reports that the Sodsaver policy, in conjunction with proposed policies on State lands and continued investments in conservation easements, reduces sage-grouse population declines that would have occurred without these conservation measures (NRCS 2015a, p. 1).
The voluntary Conservation Reserve Program (CRP) allows private landowners to receive annual payments from USDA's Farm Service Administration in exchange for establishing permanent vegetation on idle or erodible lands that were previously used for growing crops. Enrolled lands are set aside for 10 to 15 years and cannot be grazed or used for other agricultural uses except under emergency drought conditions. The enrollment of CRP lands can be detrimental to sage-grouse when sagebrush rangelands are converted to marginal croplands, and then converted into grasslands, not sagebrush habitats (USFWS 2013, p. 48). However, some CRP lands can provide nesting, brood-rearing, and wintering habitat for sage-grouse (Schroeder and Vander Haegen 2006, p. 32; Schroeder and Vander Haegen 2011, pp. 524–528). When agricultural fields are returned to sage-grouse habitats, enrollment in the CRP generally benefits sage-grouse, especially in the Columbia Basin (MZ VI) and Great Plains (MZ I) where agricultural conversion historically occurred (Knick
In 2010, we identified agricultural conversion as one of three factors contributing to the loss and fragmentation of sage-grouse habitats, based on past rates of agricultural conversion that would likely continue. Historically, agricultural conversion reduced and fragmented sage-grouse habitats, resulting in population declines and the loss of connectivity in some areas (Knick
In 2010, we evaluated the effect of wildfire on sage-grouse and concluded that wildfire was a substantial contributor to habitat loss and fragmentation, particularly in the Great Basin portion of the range (MZs III, IV, V, and VI). The number and size of fires
Since 2010, the rangeland fire management community has made strides in addressing wildfire and its effects on habitat fragmentation in sage-grouse range, as well as the interactions between wildfire and invasive plants. Specifically, a suite of efforts such as the revised/amended Federal Plans and the associated FIAT assessments; Secretarial Order 3336; and other, related efforts represent a marked shift by the fire management community toward a more holistic approach to identifying, prioritizing, and managing impacts from wildfire in sage-grouse habitat (with fire fighter and human health and safety remaining as the highest priority in wildfire management). This marked shift is particularly important given the degree to which invasives and wildfire have the potential to reduce available habitat. Given the increased management emphasis, we still expect to lose some habitat to fire, but we now expect those losses to be less than would have otherwise occurred.
This new approach includes numerous updates to wildfire management strategies and planning tools. For example, the FIAT and Secretarial Order established local guidance and set forth enhanced policies and strategies for preventing and suppressing wildfire and for restoring sagebrush landscapes impacted by fire across the Great Basin region. Fuel treatments in sage-grouse habitats are now prioritized over treatments in other areas (Murphy
Historically, wildfire was the principal natural disturbance in the sagebrush ecosystem (Factor A). Sagebrush likely consisted of extensive sagebrush habitat dotted by small areas of grassland. This ecosystem was maintained by long interludes of primarily numerous small fires, punctuated by large fire events that consumed larger expanses (Baker 2011, pp. 196–197; Bukowski and Baker 2013, pp. 559–561). Historical mean fire-return intervals (the average number of years between two successive fires) have been estimated to be 100 to 350 years in low-lying, xeric, Wyoming big sagebrush communities, and 50 to more than 200 years in more mesic areas and mountain big sagebrush communities (Baker 2006, p. 181; Mensing
Since the mid- to late 1800s, human activities have changed the vegetation composition and structure of the sagebrush ecosystem that has subsequently altered the fire regime (Chambers
We anticipate that these average burn rates will continue in the future and could increase due to cheatgrass expansion, climate change, and drought (see Wildfire and Invasive Plant Impacts, below). These burn rates are based on wildfire-impacted acres each year and do not account for areas previously burned that re-burn each year; as a result, this rate likely overestimates the amount of habitat that could be impacted each year, as re-burn areas may no longer provide habitat. This burn rate is similar to the current and future burn rates analyzed in the 2010 finding.
Fire occurring within the range of sage-grouse can cause direct loss of habitat, resulting in negative impacts to breeding, feeding, and sheltering opportunities for the species (Call and Maser 1985, p. 17). In addition to the direct habitat loss, fire can also create a functional barrier to sage-grouse
Wildfire is associated with sage-grouse declines across the West (Beck
In 2010, we analyzed the effects of wildfire and invasive plants separately (75 FR 13910, March 23, 2010, pp. 13931–13937). Since that time, we have come to better understand the positive feedback loop between cheatgrass and wildfire, and believe that fire and invasive plants must be assessed, and managed, together to fully address potential impacts on sage-grouse and its habitat. Evidence of a significant relationship exists between an increase in wildfire occurrence caused by cheatgrass invasion in the Snake River Plain (MZ IV) and Northern Great Basin (MZ V) since the 1960s (Miller
Interactions among disturbances and stressors may have cumulative effects (Chambers
The arrival of European settlers in the mid-1800s initiated a series of changes in vegetation composition that impacted sagebrush ecosystems (Chambers
Currently, invasive annual grasses are known to occur across the sage-grouse occupied range, with the greatest infestations occurring in the Great Basin (Figure 7). In the Great Basin, cheatgrass dominates over 6.9 million ha (17 million ac) and occupies an additional 25 million ha (62 million ac) as a component of the plant community (Diamond
Nonnative annual grasses, such as cheatgrass and medusahead, have substantially altered regional fire regimes (Balch
While it is known that sage-grouse respond negatively to wildfire (Johnson
In our analysis, sage-grouse in MZ III appear to be at greatest risk from wildfire and nonnative annual grass invasion, with 54 percent of sage-grouse breeding habitat occurring in areas classified as having low resistance. The majority of sage-grouse breeding habitat in MZs IV and V occur in areas having either high or moderate resistance and resiliency to fire and invasives (Table 8).
While useful for estimating future wildfire and invasive plant risk, sagebrush resistance and resilience does not necessarily equate to sage-grouse resilience and resistance. Depending on the location and extent of wildfires, the amount of undisturbed habitat may be diminished such that it cannot sustain local populations. In addition, depending upon where wildfires occur, impacts to sage-grouse could be greater due to lost connectivity between populations. However, without the ability to predict the location, size, and severity of a wildfire, it is difficult to predict with certainty the location and degree of habitat fragmentation that may occur in the future or the associated population impacts.
A recent study examined the potential impact of wildfire and invasive plants on future sage-grouse population trends in the Great Basin (Coates
Without changes in wildfire and invasive plant management, we anticipate that wildfire would continue to affect the Great Basin at the current rate of about 0.85 percent per year (see Altered Fire Cycle, above). This rate could potentially increase due to the intensifying synergistic interactions among fire, human activity, invasive plants, and climate change (Neilson
As mentioned above, since 2010, wildfire managers have taken significant steps to better understand and address the impacts of wildfire on sage-grouse habitat. As part of that effort, local, State, and Federal land managers have undertaken considerable efforts to address the impacts of wildfire and invasive plants. Federal, State, and local partners have implemented a number of projects and programs to prevent and suppress the spread of wildfire and invasive plants, and where impacts have already occurred, to restore, consistent with recommendations in the COT Report (USFWS 2013, pp. 40–43). As discussed further below, the Federal Plans, FIAT assessments, and Secretarial Order provide guidance, coordination, and commitments for Federal and State agencies and private landowners to address the wildfire and invasive plants cycle and reduce impacts to sage-grouse.
The BLM has a long history of implementing vegetation management treatments and has made considerable investments in fuels and restoration treatments within the sagebrush ecosystem since 2010. Analyses of more than 4,000 completed BLM projects suggest these treatments provide direct and indirect benefits to sage-grouse populations and have been effective at ameliorating the impacts of wildfire and invasives to sage-grouse (Table 9). The strong emphasis on sage-grouse since 2010 is reflected through focusing additional and existing resources to protect, conserve, and restore sage-grouse habitat. This emphasis has shifted priorities in many of the BLM's programs that treat vegetation, including fuels management and post-fire recovery. The BLM has incorporated emerging science, monitoring results, and adaptive management to influence and modify vegetation management work to achieve the most ecosystem and landscape benefit.
The Federal Plans require that livestock grazing and feral horses be managed at levels necessary to achieve Land Health Standards (LHS) (see
Within the Great Basin, the efforts by BLM, USFS, and DOI to address the impacts of wildfire and invasive plants on a landscape scale are particularly noteworthy. The BLM and USFS are implementing FIAT as part of their Federal Plans to prioritize actions directed at reducing the impacts of invasive annual grasses, wildfires, and conifer encroachment (BLM 2014, entire). Additionally, DOI has committed to the implementation of Secretarial Order 3336, Rangeland Fire Prevention, Management, and Restoration (Secretarial Order), which will result in a multiagency wildfire management paradigm shift that highlights the protection of sagebrush habitat. The BLM and USFS continue to implement measures to reduce the potential threat of wildfire to sage-grouse habitat through greater emphasis on preventing and suppressing wildfire, and restoring sagebrush landscapes threatened by wildfire and invasive species by means of improved Federal–State–local collaboration and coordination. Those efforts, as well as work by local and State wildfire managers, are discussed in further detail below.
Potential management actions to resolve resource issues were divided into proactive approaches (
Cumulatively, the FIAT assessments of the five priority areas identify more than 16,000 km (10,000 mi) of potential linear fuel treatments, approximately 2.99 million ha (7.4 million ac) of potential conifer treatments, more than 2 million ha (5 million ac) of potential invasive plant treatments, and more than 7.7 million ha (19 million ac) of post-fire rehabilitation (
The planning, implementation, and monitoring of the FIAT assessments are a multiyear process. Planning is completed for some FIAT assessment projects, and implementation has begun (Table 11). Others similar projects are in early planning stages, but are expected to be implemented in the near future. To date, the BLM has made substantial investments in fuels and restoration treatments to address the impacts of fire and invasives on sage-grouse habitats, especially within the FIAT assessment areas.
Further, the Secretarial Order provides clear direction to all affected Department of the Interior bureaus (DOI 2015b, entire), in particular BLM, for prioritizing actions to address key elements of wildfire management, including effective rangeland management, fire prevention, fire suppression, and restoration at a landscape scale. Building on BLM and USFS' long and successful history of managing wildfire in the Western United States, the Secretarial Order focuses the existing rangewide commitment to effective wildfire management—as well as invasive species control and restoration—to protect large, intact sagebrush landscapes against the destructive effects of wildfire and invasive species. For example, BLM has dedicated increased resources to all aspects of fire management within the species' range for the 2015 wildfire season. Similarly, BLM is actively pursuing the long-term directives in the Final Report component of the Secretarial Order, such as a national seed strategy, to support effective restoration efforts (DOI 2015a).
On March 1, 2015, the Task Force completed “SO 3336—The Initial Report: A Strategic Plan for Addressing Rangeland Fire Prevention, Management, and Restoration in 2015” (DOI 2015c, entire), detailing activities that could be undertaken in advance of the 2015 western fire season to improve the efficiency and effectiveness of wildfire management efforts. The actions identified in the Initial Report included priorities to strengthen planning and preparedness, such as increasing capabilities of rangeland fire protection associations (RFPA) and volunteer departments, utilizing veteran crews, ensuring fire management organizations are prepared and functional, and increasing initial attack and extended attack capability. In
• Allocating 6 million dollars in additional base funding to bolster fire programs for the long term.
• Allocating approximately 10.6 million dollars to hire additional seasonal firefighters and to support equipment (
• Committing 500,000 dollars to train rural fire departments and RFPAs in important sagebrush ecosystems and sage-grouse habitat areas.
• Providing training for more than 200 veterans to work on 20-person firefighting crews. California, Nevada, and Oregon BLM offices have hired returning veterans who bring skills such as physical fitness, endurance, leadership, communications, and operation of heavy equipment.
In addition to these actions, the BLM dedicated fuels program funding for fuels treatment and fire suppression to Great Basin States (BLM 2015h). Fuels treatment projects are prioritized and implemented based on location, opportunities for success, and overall benefit to protecting, conserving, and restoring sagebrush ecosystems and key sage-grouse habitat. Fire management actions taken by the BLM during the 2015 wildfire season has resulted in fewer acres of sage-grouse habitat burned in the early fire season compared to past years with similar weather and fuel conditions (BLM 2015h). For example, the Fuels Treatment Effectiveness Monitoring (FTEM) system is a database that captures anecdotal information when a wildfire intersects a past fuels treatment (BLM 2015h). So far in 2015, two fires in sage-grouse habitat (
The BLM has longstanding national and local policies that require monitoring vegetation treatments (both implementation and effectiveness monitoring) and guidance to apply monitoring data for adaptive management. These planning policies require the BLM to set land use goals and objectives, and to ensure that all vegetation treatments are responding to those goals and objectives. The FIAT process requires partnership with cooperators, agencies, and others involved in land or wildlife management in the FIAT assessment areas, which helps ensure BLM's treatments are benefitting the sagebrush ecosystem and that proposed treatments provide direct and indirect benefits to sage-grouse populations.
The management strategies identified by the FIAT process are consistent with broader land use plan direction. Habitat restoration treatments (
Once implemented, projects and treatments identified by FIAT will follow the same monitoring protocols as non-FIAT management actions, in accordance with overarching guidance in the Federal Plans. Specifically, monitoring that evaluates the implementation and effectiveness of FIAT management strategies will follow The Greater Sage-Grouse Monitoring Framework (BLM and USFS 2014, entire). Given past effectiveness and ongoing monitoring efforts, the BLM expects 95 to 99 percent of all habitat restoration, wildfire pre-suppression, and conifer removal projects that are completed or in progress to effectively ameliorate the impacts of wildfire and invasive plants to sage-grouse (DOI 2015e, p. 9).
At the time of this writing, the 2015 fire season is under way, and we cannot currently predict the outcome of the season in terms of impacts to sage-grouse habitat. Similarly, it is premature to assess how implementation of the wildfire and invasive plant conservation efforts discussed above are working to address impacts during this fire season. At the time of publication, approximately 200,000 ha (500,000 ac) of sage-grouse habitat has been estimated to be affected by wildfires this year, including approximately 12 ha (30 ac) of SFA. Much of the area burned is associated with a single wildfire that occurred along the Idaho and Oregon border—the Soda Fire. This fire does provide some insight into the implementation of the wildfire conservation measures.
The Soda Fire started on August 10, 2015, burning approximately 114,000 ha (283,000 ac) of Federal, State, and private lands in southwestern Idaho and eastern Oregon (NIFC 2015). Almost all of the burned area is sage-grouse habitat, with more than 20,000 ha (about 50,000 ac) designated by BLM as PHMA for the species. Despite extreme fire behavior, firefighters safely suppressed this wildfire with no loss of life and no serious injuries to firefighters or the public. An interagency Emergency Stabilization and Rehabilitation (ES&R) team of more than 40 natural resource specialists has completed 5 days working on the ground to assess damage and threats to life, property, and resources on BLM-managed lands in both Idaho and Oregon. The ES&R team is now designing treatments to mitigate threats and begin the rehabilitation of the burned area (BLM2015h). Rehabilitation of burned areas on State and private lands affected by the Soda Fire is being handled through similar authorities and processes by Idaho Department of Lands (IDL) and the NRCS. Other local, State, and Federal organizations are participating throughout the process. A Memorandum of Understanding (MOU) established in 2014 between BLM, Idaho Department of Fish and Game, and IDL plays a key part in authorizing restoration efforts and processes on State land, particularly in PHMAs and Important Habitat Management Areas (IHMAs).
The Soda Fire is one of many examples of why the Secretary of the Interior issued Secretarial Order 3336 to prioritize resources to address the threat of wildfire in sagebrush habitats for Federal land managers. We expect that the actions outlined in the Secretarial Order and BLMs commitments to implement other new strategies and tools identified (BLM 2015h) above will ultimately prove valuable in reducing the negative effects of wildfire on sage-grouse habitat. Importantly, the rapid completion of many of the near-term action items outlined in the Initial Report
The “SO3336—Final Report: An Integrated Rangeland Fire and Management Strategy” (DOI 2015c, entire), completed May 1, 2015, outlines a long-term approach to improving the efficiency and efficacy of actions to better prevent and suppress wildfire and to improve efforts to restore fire-impacted landscapes both including and beyond 2016. This approach involves targeted investments to enhance efforts to manage wildfire in the Great Basin, based on relative resilience and resistance of habitat to fire. The Final Report also outlines longer term actions to implement the policy and strategy set forth in the Secretarial Order, including the continued implementation of approved actions associated with the National Cohesive Wildland Fire Management Strategy (DOI 2014, entire) that provides guidance for the safe and effective suppression of wildfires. The actions outlined in the Final Report primarily focus on the Great Basin region, but DOI intends for the strategies developed under the Final Report to be applied rangewide where there is benefit to sagebrush ecosystem habitat and sage-grouse. Measures outlined in the Final Report include the following:
• Designing and implementing comprehensive, integrated fire response plans for the FIAT assessment areas in the Great Basin subject to fire and invasives;
• Providing clear direction on the prioritization and allocation of fire management resources and assets;
• Expanding the focus on fuels reduction opportunities and implementation;
• Fully integrating the emerging science of ecological resilience into design of habitat management, fuels management, and restoration projects;
• Reviewing and updating emergency stabilization and burned area rehabilitation policies and programs to integrate with long-term restoration activities;
• Committing to multiyear investments for the restoration of sagebrush ecosystems, including consistent long-term monitoring protocols and adaptive management for restored areas;
• Implementing large-scale experimental activities to remove cheatgrass and other invasive annual grasses through various tools;
• Committing to multiyear investments in science and research; and
• Developing a comprehensive strategy for acquisition, storage, and distribution of seeds and other plant materials.
The Secretarial Order places a priority on “protecting, conserving, and restoring the health of the sagebrush-steppe ecosystem and, in particular, sage-grouse habitat, while maintaining safe and efficient operations,” and looks to the allocation of fire resources and assets associated with wildfire to reflect that priority. In preparing the Final Report, the Task Force considered a wide variety of possible actions for conserving habitat for the sage-grouse and other wildlife species as well as economic activity, such as ranching and recreation, associated with the sagebrush ecosystem in the Great Basin. The strategy outlined in the Final Report builds upon the National Cohesive Wildland Fire Management Strategy (DOI 2014, entire) and is intended to ensure improved coordination with local, State, Tribal, and regional efforts to address the potential threat of wildfire at a landscape level.
In 2015, BLM initiated implementation of the National Seed Strategy, a key program included in the Secretarial Order (BLM 2015c, entire; BLM 2015h, entire). The “National Seed Strategy for Rehabilitation and Restoration 2015–2020” (Seed Strategy) provides a coordinated approach for stabilization, rehabilitation, and restoration treatments. The Seed Strategy also provides a framework for actively working with the private sector in order to build a “seed industry” for rehabilitation and restoration. This program was developed specifically in response to concerns about the wildfire and invasive plant cycle in the sagebrush ecosystem, and was identified in the Secretarial Order. The Seed Strategy has the following four goals:
1. Identify seed needs, and ensure the reliable availability of genetically appropriate seed;
2. Identify research needs and conduct research to provide genetically appropriate seed and to improve technology for native seed production and ecosystem restoration;
3. Develop tools that enable managers to make timely, informed seeding decisions for ecological restoration; and
4. Develop strategies for internal and external communication.
The Seed Strategy ensures that adequate supplies of native seed will be available for sagebrush ecosystem restoration. The use of locally appropriate native seed will improve restoration success, serving as an important tool in the suppression of invasive plant infestations after habitat disturbances, such as wildfire. The measures in the Seed Strategy are consistent with COT Report conservation recommendations for post-wildfire restoration (USFWS 2013, p. 40). The initiation of the Seed Strategy by BLM is evidence of DOI's commitments to fully implement the measures included in the Secretarial Order and serves as an important tool for the minimization of the wildfire-invasive plant cycle across the species' range (BLM 2015h, entire).
We analyzed the certainty of implementation and effectiveness of the Secretarial Order pursuant to PECE (68 FR 15100, March 28, 2003). As noted above, the purpose of PECE is to ensure consistent and adequate evaluation of recently formalized conservation efforts when making listing decisions. The policy provides guidance on how to evaluate conservation efforts that have not yet been implemented or have not yet demonstrated effectiveness. The evaluation focuses on the certainty that the conservation efforts will be implemented and the effectiveness of the conservation efforts to contribute to make listing a species unnecessary.
The majority of the actions identified in the Initial Report have been implemented (BLM 2015h, entire). Specifically, the following actions have taken place: Investments targeted to enhance efforts to manage wildfire in the Great Basin; a process has been established for allocating funds to support policies and strategies for preventing and suppressing wildfire and for restoring sagebrush landscapes impacted by fire across the Great Basin; and funds were provided this year to support efforts under the Secretarial Order (BLM 2015h, entire). The agencies have the legal authorities to carry out the responsibilities under the Secretarial Order and it builds on the BLM and USFS' long and successful history of managing wildfire in the Western United States. Therefore, we expect that the efforts will continue to be implemented to accomplish the objectives of the Secretarial Order.
The Secretarial Order is expected to work with FIAT and other authorities to further help address the effects associated with wildfire suppression and restoration and the spread of invasive species. The Secretarial Order provides an implementation plan and specific objectives including short-term actions for the 2015 fire season and long-term actions needed to meet the objectives identified in the order. Pursuant to the Secretarial Order, protocols for monitoring vegetation treatments (both implementation and effectiveness monitoring) were established and guidance was developed to apply monitoring data for adaptive management (BLM 2105h, entire).
We expect that the measures will be effective in reducing the impacts of wildfire and invasive plants to sage-grouse and its habitats. The COT Report recommends containing wildfire within the normal range (including size and
The Oregon State Plan recognizes wildfire as one of the most significant impacts to sage-grouse and their habitat in Oregon and the Great Basin. The Plan also recognizes the interrelated nature of the threat from wildfire with the threats from nonnative annual grasses and juniper encroachment. The Plan outlines more than 40 conservation actions to address the impacts from wildfire, which are defined as any activity or action which, when implemented or continued to be implemented, will reduce potential threats to sage-grouse and will improve or maintain healthy sagebrush-steppe habitat. These conservation actions are categorized into four areas: Reducing wildfire risk, wildfire suppression, building capacity and supporting local efforts, and post-fire rehabilitation. All of the conservation actions for wildfire are predicated on the FIAT as well as the Secretarial Order, use data specific to Oregon, and are coordinated with the goals and objectives of the BLM's Federal Plans as well as local jurisdictions.
In 2010, we concluded that wildfire was one of the primary factors linked to declines of sage-grouse due to long-term loss of sagebrush and conversion of sagebrush habitats to invasive annual grasses. Loss of sagebrush habitat to wildfire had been increasing in the western portion of the sage-grouse range mainly due to an increase in wildfire occurrence, intensity, and severity (Miller
While the manner in which wildfire and invasive plants affect sage-grouse has not changed since the 2010 finding, there has been a significant change in the approach to rangeland firefighting and fuels management to address these potential threats. Through development of the FIAT, as well as the Secretarial Order, the BLM and USFS have developed and implemented wildfire management strategies and actions intended to reduce the impact of wildfire and invasive plants (BLM 2015h, entire). Similarly, a paradigm shift is occurring in the way land managers and the larger conservation community approach invasive plant control and in particular the relationship between invasive plants and wildfire.
Without management, current burn rates would likely continue, potentially impacting another 17 to 25 percent of the species' range within the Great Basin over the next 20 to 30 years. If this level of wildfire did occur, sage-grouse populations in the Great Basin could decline 43 percent over the next 30 years (Coates
In 2010, we evaluated the effect of grazing on sage-grouse (including domestic livestock, free-roaming equids, and wild ungulates) and concluded that improper grazing was likely having negative impacts to sagebrush and sage-grouse at local scales, but that population-level impacts were unknown. However, given the widespread nature of grazing, the potential for population-level impacts could not be ignored (75 FR 13910, March 23, 2010, p. 13942). In this section we evaluate the best available information on the impacts of livestock grazing on sage-grouse and on conservation actions since 2010 intended to ameliorate those impacts. We have no new information regarding impacts of native ungulates on sage-grouse populations, which were not considered a substantive threat in 2010; therefore, our analysis focuses exclusively on domestic livestock grazing. The impacts on the species and its habitat of free-roaming equid grazing are addressed in a separate section of this document (see
Improper grazing by domestic livestock during the late 1800s and early 1900s, along with severe drought, affected sagebrush ecosystems across the range of sage-grouse (Knick
Livestock grazing is currently the most widespread land use in the sagebrush ecosystem and occurs in all MZs (Knick
The total number of livestock that currently graze within sage-grouse habitats is unknown. No rangewide data set is available describing the level of livestock grazing that occurs on private lands across the occupied range. Most grazing on Federal lands is managed by BLM and USFS (GAO 2005, p. 5). The BLM and USFS index the number of livestock grazed by Animal Unit Months (AUMs), which takes into account both the number of livestock and the amount of time they spend on public lands. An AUM is defined by BLM as the amount of forage needed to sustain one cow and her calf, one horse, or five sheep or goats for 1 month. The number of AUMs allowed depends upon land health assessments that evaluate the ecological condition of an area and its ability to support grazing (BLM and USFS 2015, entire). The number of AUMs permitted on Federal lands has gradually declined since the 1960s (Mitchell 2000, pp. 64–68). This decline was concurrent with a decline in productivity of western shrublands due to previous grazing history, changes in soils and vegetation, or drought (Knick
Properly managed grazing may benefit sage-grouse. Light to moderate livestock grazing can help maintain perennial vegetation that provides important food and cover for sage-grouse (Crawford
Alternatively, improperly managed grazing can have adverse impacts to sage-grouse habitat. Improper grazing directly influences the composition, productivity, and structure of herbaceous plants in sagebrush plant communities (Boyd
Improper livestock grazing can reduce food available to sage-grouse, which can impact reproductive success and chick survival (Coggins 1998, p. 30; Aldridge and Brigham 2003, p. 30; Pederson
Beyond habitat impacts, improper grazing can also directly affect sage-grouse (Factor E). Nearby livestock can cause females to flush from their nests (Coates
Construction and development associated with grazing, such as watering developments and fences, can have a variety of impacts such as habitat fragmentation and the facilitation of predators and disease. There have been documented incidences of sage-grouse drowning in stock tanks, which can have localized population-level effects (Boyd
Since 2010, State and Federal agencies have worked collaboratively to develop regulatory mechanisms to reduce or eliminate the impact of improper livestock grazing on sage-grouse habitats. The BLM and USFS amended or revised Federal Plans to set appropriate rangeland health standards in sage-grouse habitats that are required to maintain a Federal grazing permit. States developed and implemented State plans that govern issuance of grazing permits on some State lands. Other conservation efforts designed to improve grazing, including voluntary efforts, are discussed below.
In our 2010 finding, we identified concerns with BLM and USFS management of rangelands, contributing to our finding that regulatory mechanisms were not sufficient (75 FR 13910, March 23, 2010, pp. 13975–13980). Historically, not all allotments have been monitored to ensure compliance with LHS and permit terms and conditions, and there was no mandated prioritization of field checks to ensure compliance within sage-grouse habitats. Between 1997 and 2007 the percent of allotments monitored for LHS ranged from 22 percent to 95 percent across surveyed States, with an overall average of 57 percent (Veblen
The Federal Plans represent a major shift in grazing management and monitoring since 2010, with respect to meeting LHS and sage-grouse conservation objectives (BLM and USFS 2015, entire). The Federal Plans manage grazing specifically for sage-grouse habitat objectives by evaluating the numbers and distribution of livestock, evaluating environmental conditions such as drought, closing or changing allotments, managing riparian habitat for sage-grouse, and authorizing water developments only if they would not adversely impact sage-grouse. Specific grazing guidelines have been developed based on the best available science and are applied in upland and riparian/wet meadow habitats to maintain or achieve desired conditions of sagebrush, forbs, and perennial grasses. Upland vegetation guidelines will be applied seasonally and within 4 to 6.2 miles from leks, depending on site-specific information. Riparian and wetland protective measures will be applied in all sage-grouse habitat areas. Further, BLM directed resources in 2015 to fund monitoring crews, and funded activities, like data management, to ensure successful implementation of the monitoring commitments (Lueders, BLM, 2015, pers. comm.). The President's Budget request for BLM included 8 million dollars to directly support monitoring the implementation and effectiveness of the land use plans (BLM 2015d, p. II–5–6).
Given the large number of allotments across the occupied range, the Federal Plans ensure that the most important habitats are prioritized for protection. Permit review, renewal, and/or modifications occur first in SFAs, followed by PHMA and allotments containing riparian areas. The same prioritization is used for field checks to ensure compliance with permit terms and conditions. In addition, the USFS commits to modify grazing permit conditions and existing livestock improvements within 2 years and mitigate any adverse effects from grazing improvements within 5 years (BLM and USFS 2015, entire). Progress at achieving rangeland health objectives at multiple spatial scales is monitored by BLM and USFS using a habitat assessment framework that provides a consistent approach and similar data set (BLM and USFS 2015, entire).
The Federal Plans' vegetation standards and grazing management measures are consistent with the best available science on sage-grouse habitat needs and the COT report recommendations to minimize grazing impacts (USFWS 2013). The Federal Plans also include monitoring requirements and adaptive management that will ensure that the measures will be effective for the long term and that grazing occurs at proper levels for sage-grouse conservation. With changes in management direction and immediate allocation of resources, full implementation of the Federal Plans will, over time, address effects due to improver grazing. As a result of the Federal Plans, and associated monitoring commitments and adaptive management approach, the risk of improper grazing occurring on Federal lands across the occupied range is greatly reduced from 2010 levels.
Livestock grazing is the most widespread land use in the sagebrush ecosystem, and impacts can be positive, negative, or neutral depending on management practices and site-specific characteristics. Improper grazing practices can have adverse effects to sage-grouse and its habitat, and may work synergistically with other potential threats, such as invasive plants and wildfire, to increase impacts. However, well-managed grazing practices can be compatible with sagebrush ecosystems and sage-grouse persistence. In 2010, we concluded that grazing was likely having localized negative effects, but due to the widespread extent of the activity, greater impacts were possible. Since our 2010 finding, updated Federal Plans have been amended or revised in the species' range to ensure that appropriate grazing prescriptions are applied on Federal lands, covering more than half of the range of sage-grouse. As discussed in the
In 2010, we evaluated the effect of free-roaming equids (also known as free-roaming horses and burros) on sage-grouse and concluded that grazing (including grazing by free-roaming equids, native ungulates, and livestock) can have negative impacts to sagebrush (Factor A) and consequently to sage-grouse at local scales. Further, we concluded that the impacts of grazing at large spatial scales, and thus on population-levels, was unknown, but given the widespread nature of grazing, the potential for population-level impacts could not be ignored (75 FR 13910, March 23, 2010, p. 13942).
Free-roaming horses (
The BLM and USFS manage free-roaming equids on Federal lands according to the Wild Free-Roaming Horses and Burros Act of 1971. The BLM's implementing regulations designated Herd Areas as places used as habitat by a herd of free-roaming equids at the time the law was passed (43 CFR part 4700). The BLM evaluated each Herd Area to determine if it had adequate food, water, cover, and space to sustain healthy and diverse free-roaming equid populations over the long term. The areas that met those criteria were designated as Herd Management Areas (HMAs). The BLM manages HMAs to maintain the appropriate management level (AML) of free-roaming equids to be in balance with other public rangeland species, resources, and uses in a given area. The USFS has designated Territories for the management of free-roaming equids and manages them in a similar way. The HMA/Territories currently overlap with about 12 percent of the sage-grouse occupied range, primarily in Oregon, Nevada, and Wyoming (Figure 8).
In 2010, the BLM estimated that 31,000 free-roaming equids were found on BLM-administered lands (75 FR 13910, March 23, 2010, p. 13941). Currently, the BLM estimates 58,150 free-roaming equids (about 47,329 horses and 10,821 burros) exist on BLM-administered rangelands in 10 western States, including two States outside the range of the sage-grouse (BLM 2015e). In 2014, USFS estimated that, on lands it manages, there are an additional 7,447 free-roaming equids (Shepherd & Frolli 2015, BLM and USFS, pers. comm.). The number of free-roaming equids on public lands has been over AML for more than 15 years (BLM 2014c, p. 1). The extent to which free-roaming equids occur on land outside of designated Federal management areas is unknown.
The current population of free-roaming equids is estimated to be nearly double the amount that the BLM and USFS have determined can exist in balance with other public land resources and uses (BLM 2015e, p. 1). Free-roaming equids reproduce rapidly and can have rates of increase averaging 15 to 20 percent annually (BLM 2015e, p. 1). Assuming a population of 45,000 animals and a 20 percent annual growth rate, Garrott
Free-roaming equids' use of sagebrush landscapes have different ecological consequences than livestock grazing at both local and landscape scales due to biological and behavioral differences (Beever 2003, pp. 888–890; Beever and Aldridge 2011, p. 273). Equids are generalists, but grasses comprise the majority of their diet throughout the year (McInnis and Vavra 1987, p. 61). Because of physiological differences, a horse forages longer and consumes 20 to 65 percent more forage than a cow of equivalent body mass (Wagner 1983, p. 121; Menard
As with all herbivores, equid effects on ecosystems vary markedly with elevation, density, season, and duration of use (Beever and Aldridge 2011, p. 273). In some contexts, equid grazing can reduce shrub cover as equids trample, rub against, and consume shrubs (Plumb
In addition to adverse effects in sagebrush habitats, free-roaming equids can also negatively affect important meadow and brood-rearing habitats that provide forbs and insects for chick survival (Beever and Aldridge 2011, p. 277; Crawford
Management of herd size by Federal agencies is an ongoing challenge. Free-roaming equid populations grow rapidly, and in most areas, they have no natural predators (National Academy of Sciences 2013, p. 1). The Wild Free-Roaming Horses and Burros Act (Pub. L. 92–195) requires that free-roaming equid populations be managed at appropriate management levels, and allows for the removal of excess animals for adoption, sale, or destruction. Free-roaming equid management is expensive and often controversial, sometimes limiting options to manage free-roaming equids at appropriate levels (National Academy of Sciences 2013, pp. 1–2).
The Federal Plans' direction to manage free-roaming equid populations at appropriate levels reduces impacts from free-roaming equids into the future. The inclusion of sage-grouse objectives in HMAPs ensures that future decision making is done with consideration of sage-grouse ecological needs. Managing SFAs and PHMAs at AML substantially reduces the potential for habitat degradation in those areas. Based on past BLM and USFS plans and planning efforts, we expect the Federal Plans, including these free-roaming equid measures to be implemented for the next 20 to 30 years.
In our 2010 finding, we reported that approximately 36,000 free-roaming equids occurred in 10 western States (including 2 States outside the range of sage-grouse) and HMAs/Territories occupied approximately 12 percent of the range of sage-grouse. The number of free-roaming equids has increased since 2010, with about half occurring in Nevada where estimated free-roaming equid population levels are twice AML. Since our 2010 finding, the Federal Plans provide a suite of actions that, with full implementation, will manage free-roaming equids to substantially reduce potential impacts to sage-grouse, as recommended by the COT Report (USFWS 2013, pp. 46–47). Some localized degradation of habitat will likely continue, particularly in Nevada, as implementation of these actions will take time. However, full implementation of the measures outlined in the Federal Plans will reduce impacts in the most important areas for sage-grouse (see
In 2010, we evaluated the effect of pinyon juniper encroachment and concluded that it contributed to habitat fragmentation, particularly in the Great Basin portion of the range. Pinyon and juniper and some other native conifers were expanding due to decreased fire-return intervals, livestock grazing, and increases in global carbon dioxide concentrations associated with climate change, among other factors. The 2010 finding recognized the potential value of conifer removal treatments, particularly when done in the early stages of encroachment when sagebrush and forb understory is still intact (75 FR 13910, March 23, 2010).
Prior to 1860, two-thirds of the Great Basin was treeless and occupied by sagebrush ecosystems (Miller
Conifer expansion presents a stressor to sage-grouse because sites invaded by conifers do not provide suitable sage-grouse habitat (Factor A). For example, when juniper increases in mountain big sagebrush communities, shrub cover declines and the season of available succulent forbs is shortened due to soil moisture depletion (Crawford
The extent of conifers within the species' range is anticipated to expand in the future unless effectively treated. Rangewide, 6 to 13 percent of sage-grouse habitat may be at risk of conifer encroachment (Manier
Miller
Since 2010, considerable effort has been undertaken to remove conifers, thus reducing the impacts of conifer encroachment to sage-grouse habitat. Federal Plans and State Plans provide commitments to reduce conifer encroachment. The SGI has been actively treating conifer encroachment on private lands across the species' range. Lastly, private land owners have pursued conifer removal projects, including commitments associated with enrollment in CCAAs.
The effectiveness of these current and planned treatments varies with the technique used and proximity of the site to invasive plant infestations, among other factors (Knick
The potential threat of conifer encroachment has changed since the last status review. In 2010, we found habitat fragmentation, due in part to conifer encroachment, to be a threat to the species; regulatory mechanisms and conservation efforts were insufficient to address this threat. Based on past trends and the current distribution of pinyon-juniper relative to sagebrush habitat, we anticipate that expansion will continue at varying rates across the landscape and cause further loss of sagebrush habitat. However, projects to remove conifers near sage-grouse habitat have been implemented for PACs, and regulatory measures included in Federal and State plans have resulted in a paradigm shift in land management objectives and practices that will further reduce conifer impacts on sage-grouse and sagebrush habitat. The Federal agencies have committed to continue conifer removal projects in the most important habitats identified in the COT Report (USFWS 2013, pp. 16–29) and the FIAT Assessments (BLM 2015a, entire). For a detailed discussion of conservation measure implementation and effectiveness, see
In 2010, we evaluated mining as part of the energy development assessment and concluded that energy projects contributed to habitat loss and fragmentation. Mining was identified as occurring across the species' range, but was most prevalent in Nevada (MZs III, IV, and V) and Wyoming (MZs I and II). At that time, regulations addressing effects from mining were determined to be inadequate. As a result, the 2010 finding concluded that habitat loss and fragmentation, caused in part by mining and inadequate regulatory mechanisms, were significant threats to the species such that listing was warranted under the Act (75 FR 13910; March 23, 2010).
Mining has occurred throughout the range of sage-grouse since the mid-1800s (Nevada Mining Association 2015), and mining in sagebrush habitats continues today (American Mining Association 2014). Mining is generally divided into three categories, based on the type of mineral extracted: Locatable, leasable, and salable minerals (BLM 2015f, p. 1). Additionally, each of these mining categories has its own specific regulations. Locatable minerals are hard rock minerals whose extraction is subject to the General Mining Law of 1872, such as gold, silver, and copper. Leasable minerals include resources such as coal, oil, and gas. Saleable minerals are more common, lower value resources, such as sand and gravel (BLM 2015f, p. 1). The extent of mining for any individual mineral varies widely, as does the size and activity of individual mines, making generalizations of impacts difficult.
Consistent with our 2010 finding (70 FR 13910, March 23, 2010, pp. 13948–13949), we do not have a comprehensive dataset about existing and proposed mining activity to do a quantitative analysis of potential impacts to sage-grouse. In 2010, we were aware of approximately 25,500 ha (63,000 ac) of existing mining-related disturbance within the range of sage-grouse; those mining projects and associated impacts are likely continuing today. These projects likely removed sagebrush habitat when first implemented (70 FR 13910, March 23, 2010, pp. 13948–13949) and continue to have indirect effects to sage-grouse populations near the project sites through disturbance from noise, human presence, equipment, and explosives (Moore and Mills 1977, entire). Overall, the extent of these projects directly affects less than 0.1 percent of the sage-grouse occupied range. Although direct and indirect effects may disturb local populations, ongoing mining operations do not affect the sage-grouse rangewide.
Currently, surface and subsurface mining activities are conducted in all 11 States within the sage-grouse range (Minerals Education Coalition 2015; National Mining Association 2014a BLM 2011, entire). Minerals are not distributed evenly across the sage-grouse landscape, and as a result, mining activities tend to be localized or regional. Coal is primarily found in the Rocky Mountain States, while lithium has been mined exclusively in Nevada (although a more recent discovery has been made in southwestern Wyoming) (Mining.com 2014). Precious metals, while being mined to some degree in all 11 States across the sage-grouse range, primarily occur in Nevada and Colorado (USGS 2013).
By reducing and fragmenting habitats and disturbing individual sage-grouse, mining can directly or indirectly affect sage-grouse. Surface and subsurface mining can reduce sagebrush habitat, ranging from potential losses of many thousands of hectares at large industrial mines to 4 ha (10 ac) or less at smaller mining operations (Factor A). Habitat loss and fragmentation could preclude movements of sage-grouse between seasonal habitats (Connelly
Projections of future mining activities are difficult, as market prices for any specific mineral commodity vary greatly. The overall extent of mining activities in the United States has remained fairly consistent over the past 5 years (National Mining Association 2014b, p. 1), although coal production, including the number of coal mines, within the range of sage-grouse has generally declined since 2008 (EIA 2015, p. 93). We anticipate that some amount of mining will occur within the range of the sage-grouse indefinitely, depending on the extent of the desired mineral resource, development of new mining techniques, and market conditions. Conservation efforts are discussed below.
Since 2010, a number of landscape-scale efforts have been undertaken to reduce impacts to sage-grouse across the range, including habitat loss and fragmentation from mining. The Federal Plans are the primary tools for managing mining impacts to sage-grouse. State plans in Wyoming and Montana include regulatory mechanisms to address impacts from mining. These conservation efforts are consistent with the recommendations in the COT Report (USFWS 2013, p. 49). The Federal and State plans, as well as individual efforts
The majority of mining activity within the sage-grouse range occurs on Federal lands where the Federal Plans direct the management of mineral development (BLM and USFS 2015, entire). Except in Wyoming, all PHMA is closed to new mineral material sales and leasable mineral operations, with exceptions for Free Use Permits and the expansion of existing operations. Free Use Permits allow governmental agencies and nonprofit organizations to extract and use mineral materials for up to 10 years (BLM 2013b, p. 1). Any proposed expansion of existing mining operations in PHMA would require design features to minimize impacts and would require mitigation of any impacts. Wyoming remains open to new mining activities within PACs, but those activities are restricted by a disturbance and density cap as per the Wyoming Plan (see
The Federal Plans designate the most important sagebrush habitat as SFAs where locatable mineral withdrawal is recommended, except in Wyoming where only a portion is recommended for withdrawal. For proposed coal projects, the BLM will determine at the time of a new lease if an area is suitable for development. During that evaluation, PHMA will be considered essential for sage-grouse conservation, ensuring that decisions are made with consideration of sage-grouse conservation needs. General sage-grouse habitats (GHMA) are open to mineral development, but are subject to stipulations designed to protect sage-grouse. In addition to these mining-specific measures, no discretionary anthropogenic activities in PHMA would be allowed to impact more than 3 percent (or 5 percent in Wyoming and Montana) of the total sage-grouse habitat within a Biologically Significant Unit (BSU). Any authorized activities that result in loss of sage-grouse habitat would require mitigation in an amount or manner that results in a net conservation benefit to the species. Further, in response to monitoring, activities allowable under the Federal Plans may be adjusted based on adaptive management criteria to provide an immediate, corrective response to identified triggers for population or habitat declines. Due to limitations explained above, the disturbance caps may have limited applicability to some types of mining activities, but do place limits on other disturbance if adaptive management triggers are exceeded.
These measures reduce potential mining impacts to sage-grouse on approximately 14 million ha (35 million ac) of PHMA. The restrictions on leasable and salable mining in PHMA eliminate nearly all potential habitat loss associated with those activities. To the limited extent those activities could occur in PHMA, design features would be required to minimize disturbance, and mitigation would be required for any impacts. The laws governing locatable mineral development and coal mining limit the ability to completely remove this threat from PHMA. Locatable mineral development is likely to continue in the future, but it is difficult to know the location or extent of future mining activity within the range of sage-grouse. The SFAs contain the habitats and populations most important to the long-term conservation of the species and needing protection from future mining impacts, and at this time we are currently unaware of planned mining activity in these areas that rise to the level of causing population-level impacts to sage-grouse.
Within the areas of greatest conservation importance (SFAs), DOI will recommend withdrawal from locatable mineral entry. We support the recommendations for mineral withdrawal in SFAs that would remove potential impacts on approximately 4 million ha (10 million ac) of sage-grouse habitat. In Wyoming, the BLM adopted the State strategy, which has proven to be effective in directing activities outside of habitat and limiting impacts when they do occur (see
The States also implement Federal regulations for coal mining. Coal mining is regulated by the Surface Mining Control and Reclamation Act of 1977 (SMCRA), which is implemented by the Office of Surface Mining and Reclamation. This Federal law requires consideration of fish and wildlife resource information for the permit and adjacent area, along with a detailed analysis by the permittee on how impacts will be minimized or avoided. Permittees must also include a plan for enhancement of fish and wildlife resources on the permit area. The OSM has delegated the regulatory authority for implementing the SMCRA to five States within the range of sage-grouse: Wyoming, Montana, Utah, Colorado, and North Dakota. Sage-grouse, therefore, must be considered in the implementation of the SMCRA, and coal mining, in those States. The implementation agency must consider impacts on fish and wildlife, including sage-grouse. Sage-grouse are also typically addressed in all States within its range during the development of coal resources simply due to its status as a State trust resource.
The impacts of mining have been reduced since the last status review. In 2010, we concluded that habitat fragmentation, due in part to mining, was a significant threat to the species, and regulatory mechanisms were not sufficient to address the threat. The scattered nature and intensity of mining, coupled with market uncertainty, makes it difficult to accurately predict impacts to sage-grouse on a rangewide basis. If future locatable mineral development occurred, it could have local impacts to leks and populations. This type of mining impact is most likely to occur in
In 2010, we evaluated the impacts of renewable energy development (wind, solar, and geothermal) on sage-grouse, and concluded that it was a threat to the species (75 FR 13910, March 23, 2010, pp. 13949–13954). At that time, renewable energy development was increasing across the species' range, and regulatory mechanisms were inadequate to address impacts to the species.
Development of commercially viable renewable energy continues to increase across the sage-grouse range (EIA 2015, entire; DOE 2014, entire). Studies examining the impacts of renewable energy development on sage-grouse populations are limited. Renewable energy facilities typically require many of the same features for construction and operation as do nonrenewable energy resources, and, therefore, we anticipate their impacts will be similar. These include direct habitat loss and habitat fragmentation (Factor A) through construction and operation of an energy facility, and indirect effects resulting from the presence of power lines, human activity, introduction of invasive plants and novel predators, and noise (Connelly
Given the incentives provided by the Energy Policy and Conservation Act, and State mandates, we anticipate the development of commercially viable renewable energy will continue into the future. However, since 2010, conservation efforts have been implemented to direct the location of development to reduce renewable energy impacts across the occupied range of the species. The potential future extent and impacts of the three primary kinds of renewable energy within the occupied range of sage-grouse (wind, solar, and geothermal) are discussed further below, as well as the conservation efforts that ameliorate the effects.
Wind energy development is facilitated by Federal and State energy laws and policies that encourage its development. In 2008, the DOE issued an initiative to increase wind energy production by 20 percent by 2030 (DOE 2014, entire). Idaho and California provide tax incentives and loan programs for renewable energy development (State of Idaho 2015; California Energy Commission 2015), and Colorado and Nevada have laws requiring increased renewable energy production (AFWA and USFWS 2007, p. 8; Nevada Public Utilities Commission 2015). With the advent of Federal tax credits for wind energy facilities, wind development increased 20 percent in 2013 (Esterly and Gelman 2013, p. 3).
The current amount of implemented wind development within the species' occupied range is low. A geospatial assessment of currently implemented projects reveals that, within the species' occupied range, about 1,400 ha (3,500 ac) have been impacted by wind energy development; these projects occur in MZs I, II, III, and IV and impact less than approximately 0.002 percent of the occupied range (USFWS 2015a). The BLM has issued several ROWs in support of continued and future wind development that may influence sage-grouse habitats, but actual development of these ROWs into commercial facilities is not certain (Manier
Wind energy has the potential for development throughout the sage-grouse's occupied range. The National Renewable Energy Laboratory has modeled and mapped the wind resources in each of the States and classified the potential for wind power generation. All MZs contain areas where wind resources have been identified as economically developable over the next 20 years. More than 14 percent of the sage-grouse occupied range has high potential for commercial wind power, with MZs I and II having the greatest potential (BLM 2005b, p. 5–103; NREL 2014, p. 2). In a separate assessment, the BLM estimated that 600 km
Wind development projects can have a variety of direct and indirect impacts to sage-grouse (LeBeau
Like other forms of renewable energy, solar energy development has increased in recent years, but minimal activities have occurred within the range of sage-grouse. Currently, only two solar projects have been constructed within the range of sage-grouse, in Nevada and Oregon (USFWS 2015a). The primary impact from solar facilities is habitat loss due to the installation of solar panels and diversion of water to support the facilities (Manier
Future impacts from solar energy development are forecast to be extremely limited. In 2012, the BLM assessed potential solar development on their lands within six western States (BLM 2012). That assessment provided direction to exclude solar development from identified sage-grouse habitat on BLM public lands in Nevada and Utah.
Geothermal exploration and development activity on Federal lands has been sporadic, but activity has increased in recent years. Currently, four geothermal facilities have been constructed within the range of sage-grouse in MZs III and IV, totaling 57,384 ha (141,800 ac; Manier
The greatest potential for future commercial geothermal energy development is within MZs III, IV, and V (EIA 2009, entire). Currently, approximately 1,800 km
Impacts from geothermal energy development have not been studied, but are expected to be similar to oil and gas development (Manier
Since 2010, State and Federal agencies have worked collaboratively to develop regulatory mechanisms to reduce or eliminate the potential threat of new renewable energy development. The BLM and USFS amended or revised Federal Plans to restrict development in priority habitats. States developed and implemented State plans that govern development on State and private lands. These efforts are in addition to direction to conserve sage-grouse that was provided by wind, solar, and geothermal assessments conducted by the BLM.
For geothermal projects, NSO is required in the 14 million ha (35 million ac) of PHMA for all States except Nevada and Wyoming. In Nevada, limited geothermal development could occur on Federal lands if it is determined that sage-grouse will not be impacted (BLM and USFS 2015, entire). In Wyoming, geothermal projects are subject to use restrictions including disturbance caps. Geothermal projects are allowed in GHMA, with measures such as timing limitations to minimize impacts. Priority will be given first to leasing and authorizing developing geothermal projects outside of PHMA and GHMA, then to non-habitat areas within PHMA and GHMA, and lastly to the least suitable sage-grouse habitat. Based upon a geospatial assessment of the land uses, the Plans reduce the percentage of breeding habitat potentially impacted by geothermal development from 33 percent to 4 percent (USFWS 2015a).
In 2010, renewable energy was identified as a potential contributor to habitat fragmentation, and we concluded that regulatory mechanisms were not sufficient to address the threat in the future. Since 2010, regulatory mechanisms provided by Federal Plans and Wyoming, Montana, and Oregon Plans that eliminate or restrict most new renewable energy development in important sagebrush habitats substantially reduce this potential impact on approximately 90 percent of the sage-grouse breeding habitat. Some renewable energy development will occur in the future, primarily on private land or in GHMA, but it is impossible at this time to predict if, where, or how much development could occur. Avoidance and minimization measures included in the Wyoming, Montana, and Oregon Plans and the Federal Plans would reduce potential impacts if those projects did occur (see
In 2010, we evaluated the impact of urban and exurban development together with agricultural conversion and infrastructure, and determined that collectively those land uses were contributing to habitat fragmentation (75 FR 13910, March 23, 2010, p. 13931).
Impacts from European settlement began in the southwestern portion of the sage-grouse range (MZ III) as early as the 1600s and were widespread in the northern portion of the range by the mid-1800s (Schroeder
Most urban development is at the edge of the sage-grouse range while exurban development is scattered throughout the range, though limited to private lands (Connelly
Urban development affects sage-grouse habitat through the removal of vegetation and subsequent construction of buildings and associated infrastructure (Factor A; Knick
Human populations have increased in size and spatial extent over the past century, particularly in the western portion of the sagebrush biome (Stiver
Avoiding or minimizing additional urban and exurban development in sage-grouse habitats requires identifying habitats most at risk to development, developing and implementing land policies to acquire, maintain, or enhance habitat, and promoting ecologically sustainable private lands and ranches in sage-grouse habitat (Stiver
The 2010 finding concluded that growing human populations and associated urban and exurban development were adversely affecting sage-grouse. Urban and exurban development is expected to continue to affect sagebrush habitat throughout the sage-grouse range, causing localized impacts to individuals and populations. The impacts are not anticipated to occur evenly across the range; they are expected to occur primarily upon private lands and likely near existing developed areas as populations expand. Fifty-three percent of the occupied range is on federally owned lands where urban and exurban development is unlikely to occur, although associated infrastructure and indirect effects are possible. Existing urban and exurban development will continue to affect sagebrush habitat at many locations scattered throughout the sage-grouse's range, causing impacts to individuals or populations. Substantial private land conservation efforts that are consistent with the recommendations of the COT Report (USFWS 2013, pp. 50–51), including SGI's completion of more than 182,870 ha (451,884 ac) of conservation easements, have minimized potential impacts of new development throughout the range.
In 2010, we evaluated the effect of recreation on sage-grouse and concluded that it was not a threat to the species (75 FR 13910, March 23, 2010, pp. 13984–13985). We have no new information at this time to change the conclusion that recreation is not a threat to the species. Recreational hunting of sage-grouse is discussed in another section (see,
Recreational activities occur across the range of the species (42 of the 48 sage-grouse populations; USFWS 2013, pp. 16–29), but are of limited severity and typically concentrated in specific, designated areas, such as trails and campgrounds. Recreational activities include hiking, camping, fishing, horseback riding, mountain biking, off-highway vehicle use, and wildlife viewing (Ouren
Though limited in extent and frequency, recreational activities can have a variety of direct and indirect effects to sage-grouse. Although rare, people can crush eggs or strike birds with vehicles (Factor E) (Connelly
Given the limited data about recreational activities occurring in sage-grouse habitat, it is difficult to accurately predict future impacts on sage-grouse throughout the range. However, based on historical and current trends, recreational activities are likely to continue on the landscape indefinitely. Recreational activities may increase over time in correlation to predicted increases in human populations.
In the 2010 finding, we concluded that recreation was not a threat to the species. No additional evidence has been discovered or presented suggesting that recreational activities or the associated impacts have changed since the 2010 finding. Recreation continues to be an activity that occurs sporadically across the range of the species, with some localized impacts, but no population-level effects to the species. Together, the Federal Plans and Wyoming, Montana, and Oregon State Plans reduce impacts from recreation to the areas identified as PHMA and GHMA, which encompass approximately 90 percent of the modeled breeding habitat across the species' range (see
In 2010, we evaluated the effect of climate change and drought on sage-grouse (75 FR 13910; March 23, 2010; pp. 13954–13957). While the direct impact of climate change on sage-grouse was unknown, we found climate change to be intensifying other threats such as fire and invasive species. We found drought not to be a substantial threat to the species across its range.
Our analysis of impacts to sage-grouse attributable to climate change includes the consideration of ongoing and projected changes in climate across the sage-grouse's range. The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change (IPCC). “Climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2007, p. 78). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (
Increases in global and regional ambient temperature and variable changes in precipitation are projected out to the end of the 21st century (IPCC 2013, p. 19). Some degree of uncertainty is inherent in these and other projections of future change; however, climate change will likely affect to some degree the entire range of sage-grouse, with the greatest potential adverse impacts occurring in the southern Great Basin (Schlaepfer
Direct impacts of climate on individual birds are unknown for most species, including sage-grouse (Factor E), but climate is likely to influence the distribution and quality of sage-grouse habitat (Factor A) (Miller
Beyond affecting sagebrush directly, the effects of climate change can interact with and increase effects from other stressors (Chambers
Drought is a natural, periodic occurrence throughout the range of the sage-grouse. Large-scale drought lasting a decade, similar to the 1930s Dust Bowl drought, has occurred once or twice per century on average (Woodhouse and Overpeck 1998, p. 2706; Ault
Drought impacts to sage-grouse habitat may affect adult survival, nesting success, and chick survival (Factor A). Structural composition of plants vital for sustaining sage-grouse nesting success, including plant height and percent plant cover, may be affected during drought (Hanf
Based on precipitation and temperature projections, drought frequencies are expected to increase across the country, especially in the Rocky Mountain and southwestern States, including all sage-grouse MZs (Strzepek
The risk of decade-scale drought occurring within the southern MZs within the sage-grouse range (MZs III, V, and VII and portions of MZs II and IV) this century is estimated between 20 and 70 percent (Ault
Ameliorating the impacts of climate change and drought to sage-grouse involves addressing other impacts to the species to improve the resilience of the species and its sagebrush habitat under changing environmental conditions. Maintaining large expanses of undisturbed habitat is the best way to address potential impacts that could lead to habitat fragmentation; as discussed in other impacts sections and
The understanding of impacts from climate change and drought has not changed substantially from the 2010 finding. Climate change effects on the timing and amount of precipitation could adversely affect sagebrush habitat and food availability, with potential negative consequences for sage-grouse survival and recruitment; however, the extent and nature of this potential impact is not understood. Drought is a natural part of the sagebrush ecosystem, and sage-grouse abundance has been shown to fluctuate in correlation to drought conditions. Climate change and drought are most likely to affect individuals and populations at the southern extent of the species' range; however, the extent or nature of those effects to sage-grouse are unknown at this time. The greatest concern from climate change and drought is their potential to increase wildfire and invasive plant impacts in the Great Basin. If hotter and drier conditions lead to increased burn rates, then increased habitat loss due to wildfire could be predicted (see
In 2010, we evaluated the effect of predation on sage-grouse and concluded that predation was not a threat to the species (75 FR 13910, March 23, 2010, p. 13973). We concluded that landscape fragmentation is likely contributing to increased predation on sage-grouse. However, except in localized areas where habitat is compromised, we found no evidence to suggest that predation is limiting sage-grouse populations rangewide. New information developed since that time does not alter our conclusion.
Predation (Factor C) is the most commonly identified cause of direct mortality for sage-grouse during all life stages (Blomberg
The habitat fragmentation and development that began across the sagebrush ecosystem in the late 19th century (see
High predator abundance within a sage-grouse nesting area may negatively affect sage-grouse productivity without causing direct mortality. The increase in the numbers of corvids within the sagebrush ecosystem is an important change because sage-grouse nests are at greater risk of predation by these visual predators (Conover
Data are lacking that definitively link sage-grouse population trends with predator abundance. At the rangewide scale, predation is not believed to be a widespread factor limiting sage-grouse
Since 2010, conservation efforts have been implemented to address predation and associated impacts. Conservation measures can limit the effects of predation by preventing habitat fragmentation caused by transmission lines, roads, and nonnative vegetation (Howe
In summary, predation was identified as a potential threat in the 2010 finding and will likely continue to have adverse impacts to local populations, particularly in areas where habitat fragmentation has occurred. Mortality due to nest predation by ravens or other human-subsidized predators is increasing in some areas (
In 2010, we evaluated the effect of disease (Factor C) on sage-grouse and concluded that disease was not a threat to the species (75 FR 13910, March 23, 2010, p. 13970). In that finding, we determined that, while WNv was affecting some populations, no evidence existed that disease was a substantial mortality factor for the persistence of sage-grouse across the species' range (75 FR 13910, March 23, 2010, p. 13970). We have no new information to indicate that analysis has changed.
Sage-grouse are host to numerous parasites and pathogens (Connelly
West Nile virus is known to have localized impacts to sage-grouse populations (Christiansen and Tate 2011, p. 122; Walker and Naugle 2011, p. 139). Similar to other North American bird species (McLean 2006, p. 54), sage-grouse are highly susceptible to WNv, with mortality rates nearing 100 percent of infected birds (McLean 2006, pp. 53–54; Clark
West Nile virus has been detected across the species' range, with localized outbreaks occurring in 10 of 11 States and 1 of 2 Canadian provinces in the species' range (WNv has not been detected in Washington or Saskatchewan (USFWS 2014b)); however, sage-grouse are likely to have been infected in Saskatchewan as well (Walker and Naugle 2011, p. 133). West Nile virus infections in other species in Washington suggest that sage-grouse in the Columbia Basin could be exposed to the disease (USGS NWHC 2014). West Nile virus was first detected in sage-grouse in 2003, with localized outbreaks occurring from 2004 to 2009 (Naugle
Although WNv is present throughout the range of sage-grouse, on a finer scale WNv presence depends upon water sources that provide aquatic breeding habitat for mosquitoes (Zou
The primary conservation measure for WNv is the control of mosquitoes and their breeding habitat (Walker and
With the exception of WNv, we could find no evidence that disease poses an impact to sage-grouse across the species' range. West Nile virus currently is a localized stressor that has had impacts on some sage-grouse populations, having caused declines and in some cases local extirpations of populations in North Dakota, South Dakota, southeast Montana, and Idaho. In those affected areas, WNv is likely to have an adverse effect on population growth rates, with small populations being at greatest risk of extirpation if outbreaks reduce population size below a threshold where recovery is no longer possible (Walker and Naugle 2011, pp. 137–139, 140). The incidence of WNv is likely to continue across the species' range in the future. The factors most likely to affect future occurrence are climate change and the abundance and the distribution of anthropogenic surface water. Conservation measures that limit and or manage the development of new artificial water sources will minimize habitat availability for mosquitoes that could spread WNv. As noted in our 2010 finding, a complex set of environmental and biotic conditions that support the WNv cycle must coincide for an outbreak to occur, and the annual patchy distribution of the disease is currently keeping population-level impacts at a minimum (75 FR 13910, March 23, 2010, p. 13970).
In 2010, we evaluated the effect of recreational hunting on sage-grouse and concluded that recreational hunting is not a threat to the species (75 FR 13910; March 23, 2010; p. 13965). In 2010, we also determined that the effects of falconry hunting and poaching are negligible due to their extremely limited extent (75 FR 13910; March 23, 2010; p. 13965). We have no new information about falconry hunting or poaching to change those determinations; therefore, they will not be discussed further in this status review.
During the late 1800s and early 1900s, the sage-grouse was heavily exploited by both commercial and sport hunters (Factor B) (Patterson 1952, pp. 30–33; Autenrieth 1981, pp. 3–11). State wildlife agencies were sufficiently concerned with the observed declines in the 1920s and 1930s that many closed their hunting seasons and others reduced bag limits and season lengths as a precautionary measure (Patterson 1952, pp. 30–33; Autenrieth 1981, p. 10). By the 1950s, populations were considered recovered and recreational hunting was again allowed throughout the range (Patterson 1952, p. 242; Autenrieth 1981, p. 11). In recent years, hunting seasons and bag limits have fluctuated and become more conservative across the species' range as States responded to changing population numbers and perceived threats to birds (Reese and Connelly 2011, p. 104).
In 2014, sage-grouse hunting took place in 8 of the 11 States where sage-grouse occur. Sage-grouse are listed as a threatened species in Washington (Stinson
Sage-grouse hunting is regulated by State wildlife agencies. Hunting seasons are reviewed annually, at which time States can adjust harvest management based on updated abundance information and adaptive management criteria established in State wildlife management plans. Information on abundance and local habitat conditions is used to make any adjustments to the hunting season necessary to reduce the potential for additive mortality. Seasonal adjustments take the form of changes to the number of permits issued, changes to the season length or bag limit, or total closure of the hunting season. Bag limits and season lengths are relatively conservative compared to prior decades (Connelly 2005, p. 9; Gardner, California Department of Fish and Game, 2008, pers. comm.; USFWS 2014b). Emergency closures, changes in permit numbers, and implementation of more conservative hunting seasons have been used for populations in decline or in areas experiencing other issues of potential concern (Budeau, Oregon Department of Fish and Wildlife, 2014b, pers. comm.; Christiansen, Wyoming Game and Fish Department, 2014b, pers. comm.; Espinosa, Nevada Department of Wildlife, 2014b, pers. comm.; Griffin, Colorado Parks and Wildlife, 2014, pers. comm.; Moser, Idaho Department of Fish and Game, 2014, pers. comm.; Robinson, Utah Division of Wildlife Resources, 2014b, pers. comm.; Wightman, Montana Fish, Wildlife, and Parks, 2014b, pers. comm.).
Recreational hunting is anticipated to continue into the future, though it is difficult to make accurate predictions about specific levels of hunting mortality because States make adjustments annually. Given the downward trend in hunting mortality reported over the last several decades, mortality rates from hunting will likely continue to decrease. Rangewide, hunting seasons are more conservative than in the past, which has resulted in a reduction in sage-grouse hunting mortality across all sex and age classes (USFWS 2014b). Many States have reported estimated hunting mortality to be lower than the 10 percent mortality cap recommended by Connelly
In 2010, we concluded that hunting was not a threat to the species and based on current information about harvest rates, it continues not have substantial impacts to sage-grouse. To date, changes in the management of sage-grouse hunting have resulted in a substantial reduction in sage-grouse hunting mortality rangewide.
In 2010, we evaluated the potential overuse of sage-grouse for scientific and educational purposes and determined
Sage-grouse are one of the most intensely researched and monitored birds in North America. Scientists researching or monitoring sage-grouse typically observe, approach, capture, handle, band, or attach radio transmitters to individual sage-grouse to study their movements, behaviors, and population dynamics. Translocations have been used for a variety of scientific purposes, such as a management tool to restore or augment declining populations of sage-grouse and to improve the genetic diversity of populations (Alberta Environment and Sustainable Resource Development 2013, p. viii; White 2013, p. 9; Schroeder
During research-related activities, scientists could unintentionally kill, disturb, or reduce the survival of individual sage-grouse (Factor B) (Connelly
Survival rates of translocated sage-grouse vary from 36 percent in central Idaho (Musil
In summary, although research or monitoring of sage-grouse could potentially affect individuals, the best available information does not indicate that adverse impacts are occurring at the population level. Information gained through these methods has directly benefited the species. In addition, while translocations have variable success rates, the best available information does not indicate that the translocations affect the populations from which the birds were removed. Although sage-grouse are intensely studied and monitored, there is no evidence to indicate that sage-grouse use for scientific purposes is affecting the species locally or rangewide.
In 2010, we determined that contaminants were not a threat to the sage-grouse (75 FR 13910, March 23, 2010, pp.13982–13984). Sage-grouse exposed to contaminants may become sick or die (Factor E), and contaminants may reduce or remove sage-grouse habitats (Factor A). Types of contaminants that potentially affect sage-grouse include but are not limited to pesticides, products from mining and energy development, human waste, fire retardants, and airborne pollutants from roads, vehicles, and other machinery (Beck and Mitchell 2000, p. 997; Olsgard
In the past, pesticides were used to remove sagebrush, other unwanted woody shrubs, invasive plants, and nuisance insects in sage-grouse habitats in order to improve conditions for agricultural crops and livestock (Connelly
Nonrenewable energy development and chemical spills could expose sage-grouse to contaminants, such as oil, gas, and waste products. Sage-grouse may encounter harmful radiation, metals, minerals, or contaminated fluids and waste released by nuclear facilities, nonrenewable energy developments, and mines (Ramirez and Rogers 2002, pp. 434–435; Beyer
The risk of exposure to contaminants is often related to anthropogenic activities that also present potential impacts to sage-grouse, such as nonrenewable energy development and mining, as discussed in other sections of this finding. Any conservation measures that minimize the exposure of sage-grouse to those activities also minimize the risk of exposure to contaminants. Regulatory measures provided by the Federal Plans and the Wyoming Plan limit new development within important sage-grouse habitat, thus
While potential exposure to contaminants occurs across the species' range, the best available information indicates that killing or injury of birds is rare and has not had population-level impacts. Regulatory mechanisms that substantially reduce new energy development and mining in important habitats further reduce the potential for impacts to sage-grouse. For a detailed discussion of conservation measure implementation and effectiveness, see
In 2010, we did not identify military activity as an impact to the species. Since 2010, we have become aware of several military facilities that overlap to varying degrees with the occupied range of sage-grouse and which have confirmed sage-grouse presence. Military installations in Idaho, Montana, Nevada, Utah, Washington, and Wyoming encompass less than 1 percent of the currently estimated sage-grouse range. With the exception of YTC, most of the installations have little habitat or sage-grouse on the property. The YTC contains one of the two sage-grouse populations in MZ VI (Stinson and Schroeder 2014, p. 3), and was designated as a PAC in the COT Report (USFWS 2013, p. 39).
Military training and testing activities have the potential to negatively impact sage-grouse (Factor E) and their habitats. Training activities can ignite wildfires resulting in habitat loss and fragmentation (Factor A). This issue has been a particular concern in MZ VI, where approximately one quarter of the remaining sage-grouse in the MZ are located on YTC (Stinson and Schroeder 2013, p. 3). In addition to impacts from wildfire, habitat can be degraded by cross-country maneuvers with military vehicles if they crush vegetation, compact soil, or introduce invasive plants (Stinson and Schroeder 2014, p. 3). These kinds of impacts are limited, because the levels of military surface training occurring across the sage-grouse range are limited.
Compared to surface training, the military manages more extensive sections of the sage-grouse occupied range as Special Use Airspace for both testing and training. Military training airspace occurs over portions of all MZs. Recent research has demonstrated that sage-grouse are sensitive to noise (Blickley
The U.S. military must balance its role of public land steward with its primary mission of maintaining a well-trained, combat-ready fighting force. The Sikes Act (16 U.S.C. 670a–670f, as amended), enacted in 1960 with subsequent amendments, provides for cooperation between the DoD and DOI for planning, developing, and maintaining fish and wildlife resources on military lands (see
The YTC continues to manage habitat in Washington that supports one of two populations of sage-grouse in the State. Management of sage-grouse and its habitat at YTC is described in the Western Sage-Grouse Management Plan (Livingston 1998, entire), which is incorporated in the Cultural and Natural Resource Management Plan (CNRMP) (DoD 2002, entire). The CNRMP specifies management prescriptions and actions for sage-grouse and their habitat, including identifying conservation objectives and measures for habitat quantity and quality necessary for maintaining a sage-grouse population at or above the 10-year average of 200 birds. Direct protection of sage-grouse and their habitat is done through timing and area restrictions, including air space restrictions. Vegetation restoration of sagebrush ecosystems is required to address habitat impacted by wildfire and military training activities. Wildfire protection measures are required to prevent, contain, and rapidly extinguish wildfires. Monitoring of sage-grouse and their habitats, including monitoring of habitat restoration activities, is conducted within YTC jurisdictional boundaries.
In 2011, additional measures were implemented to protect sage-grouse on YTC. The Fort Lewis Army Growth and Force Structure Realignment Record of Decision's realigned sage-grouse protection area (SGPA) boundaries to incorporate new sage-grouse habitat use information and updated habitat management objectives (DoD 2011, entire). As a result, all but one active lek on the installation are protected. In addition, vegetation management of five primary containment areas within SGPAs was changed to fit with wildfire management objectives; flight restrictions were revised to cover newly proposed SGPAs; WNv surveillance and control was increased; and construction of forb greenhouse facilities was proposed for use in habitat restoration projects. The Army is currently updating the YTC resource management plan to reflect these improved sage-grouse conservation measures.
Overall, military installations cover less than 1 percent of the species' occupied range, and most installations have little or no sage-grouse habitat on or near their property. The YTC is the only installation where impacts to sage-grouse are a potential concern, in part because two of the four populations in MZ VI occur on that installation. The CNRMP has been effective in minimizing impacts to these populations, and its implementation is expected to continue into the future. Based on studies of noise impacts from others activities, it is possible that overflight noise could affect sage-grouse, but no research has been done to know if this impact actually occurs and any assessment of potential impacts would be speculative.
In 2010, we determined that small population size could result in extirpation of some populations, but was not a threat to sage-grouse rangewide (75 FR 13910, March 23, 2010, p. 13985). As summarized below, although small population size likely places some populations at risk of extirpation, sage-grouse is a widely distributed species with large, interconnected populations at the core of the range (USFWS 2013, pp. 16–29 and Appendix A). As discussed below, we again find that small population size is not a rangewide threat to the species, now or in the future.
Overall, small, isolated populations are more susceptible to impacts and relatively more vulnerable to extinction due to potential losses of genetic diversity, demographic and environmental fluctuations, and susceptibility to environmental
A number of sage-grouse populations across the species' range have been identified as at risk due to their small population size (Figure 9 and Table 14). These small populations (Table 14) may lack connectivity to other habitats and populations, and may have experienced negative population impacts from other stressors, such as WNv outbreaks, recent wildfire, habitat loss, and habitat fragmentation (USFWS 2014b). These populations may be at increased risk of extirpation due to their isolation, low population numbers, and continued impacts from natural and human-caused sources (Pimm et al. 1988, p. 757). Further, these small populations may be at risk from loss of genetic diversity. For example, populations in Jackson Hole and Gros Ventre in Wyoming and southeastern Montana were genetically isolated with reduced genetic diversity compared to nearby populations (Schulwitz
Although small, some of the identified sage-grouse populations may not have experienced declines in genetic diversity. For example, small sage-grouse populations in northern Montana may have a sufficient number of dispersing sage-grouse to maintain genetic diversity. Additionally, despite population declines and habitat loss, sage-grouse populations occupying fragmented landscapes at the northern extent of the species' range (Bush
As summarized above, the potential loss of the small, Columbia Basin populations in Washington (MZ VI), which contain approximately 0.6 percent of the estimated rangewide abundance (Doherty
Although some populations of sage-grouse are small and/or isolated (Table 14), with some at risk of extirpation, the remaining populations of sage-grouse are well distributed across the overall range of the species (see Distribution and Population Abundance and Trends, above). The number and size of these more robust populations provide redundancy for the sage-grouse, and the wide distribution of the populations across the species' overall range provides resiliency. Additionally, the rangewide distribution of the larger populations provides representation, by capturing the variation of habitat and climatic conditions across the species' range such that the loss of any of the small populations will not result in the loss of ecological diversity. These small or isolated populations represent only a small percentage of the overall species' range, and the relative population index and their potential loss may affect connectivity (Crist
In the 2010 finding, we concluded that existing regulatory mechanisms were inadequate to protect the species (75 FR 13910, March 23, 2010, p.13982). Since 2010, there have been substantial changes in regulatory protections for sage-grouse and their habitats (Factor D). The most significant change is the Federal Plans and the Montana, Wyoming, and Oregon State Plans, which collectively manage approximately 90 percent of the breeding habitat (See
In addition to the Federal Plans, other Federal laws provide regulatory authorities to Federal agencies to address sage-grouse and habitat management for the species.
The General Mining Law of 1872, as amended, opened the public lands of the United States to mineral acquisition by the location and maintenance of mining claims. Mineral deposits subject to acquisition in this manner are generally referred to as locatable minerals. Locatable minerals include metallic minerals (
The YTC continues to manage habitat in Washington that supports one of two populations of sage-grouse in the State. As a joint base, YTC is now a sub-installation of the Fort Lewis McChord Army installation. Management of sage-grouse and its habitat at YTC is dictated by management direction described in their Western Sage Grouse Management Plan (Livingston 1998, entire), which is tiered to their CNRMP (DoD 2002, entire), combined with changes contained in the Fort Lewis Army Growth and Force Structure Realignment Record of Decision (DoD 2011, entire) (also known as Grow the Army). The 2002 CNRMP is currently being updated into a newer Integrated Natural Resources Management Plan, but is not yet final. The Grow the Army Final Environmental Impact Statement analyzed the environmental and socioeconomic impacts of stationing approximately 5,700 soldiers and their families at Fort Lewis and additional aviation, maneuver, and live-fire training needs at both installations.
The CNRMP specifies management prescriptions and actions for sage-grouse and their habitat, including identifying conservation objectives and measures for habitat quantity and quality necessary for maintaining a sage-grouse population at or above the 10-year average of 200 birds. Direct protection of sage-grouse and their habitat (
The Grow the Army Record of Decision realigned sage-grouse habitat and core use area protection boundaries to incorporate new sage-grouse habitat use information and updated habitat management objectives. New leks were incorporated into the management scheme, SGPAs were reconfigured, vegetation management of fire primary containment areas within SGPAs were changed to fit with wildfire management objectives, flight restrictions were revised to cover newly proposed SGPAs, WNv surveillance and control was increased, and construction of forb greenhouse facilities were proposed for use in habitat restoration projects. The SGPAs currently protect almost all active leks at YTC. The Grow the Army Record of Decision also established Army commitment to updating their Sage-Grouse Management Plan; participating in sagebrush ecosystem conservation partnerships to promote sagebrush ecosystem conservation, restoration, and protection from wildfire in and around the PAC; and establishment of a candidate conservation agreement with the Service.
Coal mining is regulated by the provisions identified in the Surface Mining Control and Reclamation Act of 1977 (SMCRA), which is implemented by the Office of Surface Mining and Reclamation. This Federal law requires consideration of fish and wildlife resource information for the permit and adjacent area, including species listed under the Endangered Species Act, along with a detailed analysis by the permittee on how impacts will be minimized or avoided. SMCRA also requires that activities permitted under this law cannot result in the jeopardy of a listed species, or the destruction of adverse modification of designated critical habitat. Species-specific standards and procedures must also be developed if necessary to protect listed species and their habitats (USFWS 1996). Permittees must also include a plan for enhancement of fish and wildlife resources on the permit area. While SMCRA does not specifically address candidate species, protection must be given to all potential future listed species that may be affected by coal mining activities (USFWS 1996, p. 4).
The OSM has delegated the regulatory authority for implementing SMCRA to five States within the range of sage-grouse: Wyoming, Montana, Utah, Colorado, and North Dakota. Sage-grouse, therefore, must be considered in the implementation of SMCRA, and coal mining, in those States. The implementation agency must consider impacts on fish and wildlife, including sage-grouse. Sage-grouse are also typically addressed in all States within the species' range during the development of coal resources simply due to its status as a State trust resource.
The Utah Executive Order provides a regulatory mechanism to minimize potential effects from mining to sage-grouse habitat on State and private lands (Utah EO 2015–002). The Utah Executive Order requires the Utah Division of Oil, Gas and Mining to coordinate with the Utah Division of Wildlife Resources before issuing
All States across the range of sage-grouse have laws and regulations that provide for the general protection, conservation, propagation, management, and use of wildlife and that regulate the taking of wildlife, including sage-grouse (see Connelly
Many States have laws to list and protect threatened and endangered species, but these laws vary in their statutory provisions to protect species from threats (George and Snape 2010, pp. 345–346). Sage-grouse are listed as a threatened species by the State of Washington under the authorities of RCW 77.12.020. Threatened status in Washington means that a species cannot be hunted (WAC 2015, 232–12–011) and also requires the State to develop a recovery plan, which must include target population objectives, criteria for reclassification, an implementation plan, and a monitoring plan (WAC 2015, 232–12–297). However, implementation of recovery plan actions is discretionary and subject to funding.
Several States list the sage-grouse as a “species of concern,” (
Sage-grouse hunting is regulated by State wildlife agencies. Hunting seasons are reviewed annually, and States can adjust limits on updated abundance information and adaptive management criteria established in State wildlife management plans. States maintain flexibility in hunting regulations through emergency closures or season changes in response to unexpected events that affect local populations. As discussed in more detail under the
Some State regulations require that landowners control noxious weeds on their property, but designations of noxious weeds and the development of noxious weed lists vary by State. For example, only five States list medusahead as a noxious, regulated weed, but the grass is problematic in at least two additional States. Similarly, despite the proliferation of cheatgrass across the range of the sage-grouse, Colorado is the only western State that recognizes the grass as a noxious weed (USDA 2015). Therefore, State regulations that address noxious weeds may help reduce impacts to sage-grouse in local areas, but large-scale control of the most problematic invasive plants is currently unfeasible and uncoordinated (Pyke 2011, p. 543; Ielmini
Sage-grouse were first listed in Canada in 1997 as threatened by the Committee on the Status of Endangered Wildlife in Canada because of very small and declining populations in Saskatchewan and Alberta. The species' status was changed to endangered in 1998, and sage-grouse are now federally protected in Canada as an endangered species under schedule 1 of the Species at Risk Act (SARA). This designation protects sage-grouse and their nests and eggs on Federal lands and prohibits unauthorized killing, harming, harassing, capturing, taking, possessing, collecting, buying, selling, or trading of individuals of the species (SARA 2002, p. 17). SARA also provides for identification of habitat on Federal lands that is critical to the survival and recovery of species designated as threatened or endangered, and the Canadian Government is responsible for ensuring that critical habitat is protected. Although voluntary measures are the preferred method for protecting critical habitat, SARA provides the means for the government to promulgate regulations to ensure that critical habitat is not destroyed (SARA 2002, pp. 27–30). However, at this time, no such regulations have been developed for sage-grouse critical habitat.
On December 4, 2013, the Canadian Government issued an Emergency Order for the protection of the sage-grouse under SARA (CWS 2013, entire). The Emergency Order prohibits construction of new tall (greater than 1.2 m [3.9 ft]) structures, new roads, and new fences and destruction of native plants, and requires nightly noise reduction in April and May (CWS 2013, p. 112). These restrictions apply to critical habitat identified on 1,672 km
In 2014, the Canadian Government finalized an amended recovery strategy for sage-grouse (Environment Canada 2014, entire). In addition to updating the 2008 document to reflect the most recent scientific information about the status of sage-grouse in Canada and establishing population objectives, the 2014 amended strategy completed the identification of critical habitat for the species in accordance with SARA (Environment Canada 2014, p. 23). The 2008 recovery strategy did not identify critical habitat, citing a lack of information (Lungle and Pruss 2008, p. 27). In 2009, a replacement for the critical habitat section of the strategy identified “necessary, but not sufficient” critical habitat in breeding, nesting, and brood-rearing habitat for sage-grouse in Alberta and Saskatchewan (Lungle and Pruss 2009, p. 2) for a total of 165 km
The sage-grouse is listed as endangered at the provincial level in Alberta and Saskatchewan, affording additional protections to the species on provincial and private lands. Recreational hunting has been closed in Saskatchewan since at least the 1930s (Weiss and Prieto 2014, p. 1), and in Alberta since 1995 (Alberta Environment and Sustainable Resource Development 2013, p. 1). In Saskatchewan, sage-grouse were designated as threatened in 1987 under The Wildlife Regulations (Saskatchewan 1981, entire), and as endangered in 1999 under the province's Wildlife Act of 1998 (Weiss and Prieto 2014, pp. 1, 13). The Wildlife Act states that, without a license, no one may “kill, injure, possess, disturb, take, capture, harvest, genetically manipulate or interfere with or attempt to do any of those things . . . export or cause to be exported from Saskatchewan . . . [or] traffic in” designated species (Saskatchewan 1998, p. 20). Sage-grouse habitat in Saskatchewan is protected under The Wildlife Habitat Protection Act, which prohibits sage-grouse habitat from being sold or cultivated (Saskatchewan 1983, p. 4). Restrictions put in place under the Wildlife Act formerly prohibited development within 500 m (1,640 ft.) of leks and prohibited construction activities within 1,000 m (3,281 ft.) of leks between March 15 and May 15 (Aldridge and Brigham 2003, p. 32). In our 2010 finding, we deemed these buffers inadequate to protect sage-grouse from disturbance. These activity restrictions were revised in 2012 to increase lek buffers to 3,200 m (10,499 ft.); include 1,000-m (3,281-ft) buffers between development and lekking, brood-rearing, and wintering habitat; and make these restrictions apply year-round instead of only during the breeding season (Environment Canada 2014, p. 16; Weiss and Prieto 2014, p. 13).
Alberta's Wildlife Act requires that an Endangered Species Committee provide recommendations to the provincial Minister regarding designation of endangered species in Alberta and development of recovery plans, which may include population goals, conservation strategies, and the identification of critical habitat (Alberta Wildlife Act 2000, p. 13). The law states that “[a] person shall not willfully molest, disturb or destroy a house, nest or den of prescribed wildlife” (Alberta Wildlife Act 2000, p. 25), but does not require development and implementation of recovery plans for species designated as endangered. However, Alberta Environment and Sustainable Resource Development has designated more than 3,880 km
In 2010, we concluded that regulatory mechanisms in place at that time were not adequate to reduce the threats to the species and its habitat, and that the absence of adequate regulatory mechanisms was a threat to the species, then and into the foreseeable future. Since then, there have been major changes in the regulatory mechanisms that avoid or minimize impacts to sage-grouse and their habitats. Most importantly, BLM and USFS adopted amended or revised Federal Plans to conserve sage-grouse over more than half of its occupied range (See
Since 2010, of the 11 States within the occupied range of the sage-grouse, 10 have revised and adopted grouse conservation plans and regulatory mechanisms to address threats to the species and its habitat identified in 2010. State sage-grouse conservation plans in Wyoming, Montana, and Oregon contain regulatory mechanisms that minimize impacts to the species and its habitat. Since 2008, the Wyoming Plan has effectively minimized impacts within core habitats, protecting the highest density areas for the species within the State. The Montana and Oregon regulatory mechanisms include proven conservation measures, including disturbance caps, density restrictions, and lek buffers, to minimize disturbance to important habitats. In combination, the Federal and three State plans, cover 90 percent of the sage-grouse breeding habitat. Taken together, these efforts have substantially altered the regulatory landscape across the range of sage-grouse since the 2010 finding, such that we now determine that existing regulatory mechanisms adequately address effects to the species and its habitat (Factor D).
Since 2010, all States except California have drafted, revised, finalized, or implemented conservation plans for the sage-grouse to address threats to the sage-grouse. These plans take different approaches, but in general, they identify important conservation objectives and provide mechanisms to incentivize conservation. We anticipate that state plans and related efforts will continue into the future and will strengthen as implementation continues. In this section we provide a summary of the non-regulatory conservation plans (See
California does not have a State Sage-grouse Conservation Plan. California
Colorado has contributed to greater sage-grouse conservation and research, working with numerous partners over the last several decades. This coordination spans from local and State levels, to rangewide participation. The State conservation plan for greater sage-grouse (State of Colorado 2008, entire) has been implemented since 2008 over 1.5 million ha (approximately 3.7 million ac) across all landownership types. The plan uses voluntary conservation strategies to address and promote the conservation of sage-grouse in Colorado. It provides guidance to address impacts to sage-grouse from habitat fragmentation and conversion, agriculture, urbanization, conifer encroachment, recreation, nonrenewable energy, and other impacts.
The plan and the State of Colorado recommend measures to help reduce impacts from nonrenewable energy development. Colorado regulations require that effects to sage-grouse be considered by the Colorado Oil and Gas Conservation Commission (COGCC) and the Colorado Department of Reclamation and Mining Safety during their permitting processes. In addition, Colorado Parks and Wildlife (CPW) makes recommendations based on the State's conservation plan designed to reduce impacts to greater sage-grouse from nonrenewable energy development (State of Colorado 2008, pp. 22, 109, 123, 313, 325–331).
In addition, the State of Colorado issued an Executive Order (Colorado E.O. D 2015–004) in May 2015 to promote the conservation of greater sage-grouse and further implement the 2008 conservation plan. This order enhances communication and coordination among State agencies, including CPW, the State Land Board, and COGCC, as well as designating a single point of contact for external greater sage-grouse communications. Under the order, the COGCC will evaluate its existing wildlife siting rules for potential improvement and develop a comprehensive tracking system for development in sensitive wildlife habitat. Lastly, the order also prioritizes the completion of the Colorado Habitat Exchange, a voluntary compensatory mitigation tool for impacts to the species.
North and South Dakota finalized State management plans that emphasized working cooperatively with private landowners due to the relatively large acreages of private lands in those States. Both States have provided assistance working through the Sage Grouse Initiative under NRCS and are continuing sage-grouse research efforts to prioritize the best sage steppe habitat for conservation, expand core areas, and further their understanding of WNv. Both States have closed sage-grouse hunting seasons.
South Dakota has provided additional firefighting resources and in the past has restricted off-road travel if drought conditions may elevate fire danger during hunting seasons (State of South Dakota 2014, p. 23). Further, the South Dakota Department of Game, Fish and Parks works with the South Dakota School and Public Lands Office, Public Utilities Commission, and the Department of Environment and Natural Resources to provide comments and input if oil and gas development, wind development, or other proposed projects may impact sage-grouse core areas (State of South Dakota 2014, pp. 23, 24).
Earlier this year, the Governor signed an Executive Order adopting Idaho's Sage-grouse Management Plan, which focuses on the management of invasive vegetation, fuels and wildfire (Idaho E.O. 2015–04). The plan provides wildfire suppression guidance to complement Secretarial Order 3336, and commits the State to assist with fire rehabilitation and with implementation of fuel breaks, weed control, and conifer removal in mixed State and Federal ownerships. Under the plan, Idaho assumes responsibility for development, coordination, and equipping and training for Rangeland Fire Protection Associations to provide rapid response to sagebrush fires. In FY 2016 the Idaho legislature appropriated over $500,000 for various sage-grouse conservation efforts of which $120,000 was dedicated to better support RFPA implementation and effectiveness (S–1128). In Idaho, RFPAs currently account for approximately 230 firefighters in 6 areas in Idaho resulting in protection of approximately 5.7 million acres within greater sage-grouse habitat. An additional 4 RFPAs are in development within greater sage-grouse habitat. Idaho's Governor directed that all State agencies, to the extent consistent with existing State law, apply the elements of Idaho's Sage-grouse Plan to all land ownerships across the State (Idaho E.O. 2015–04).
The State of Nevada has implemented several measures to conserve habitat in the State. On September 26, 2008, the Governor of Nevada signed Executive Order 2008–10–29 calling for the preservation and protection of sage-grouse habitat in the State of Nevada. The Executive Order directs the Nevada Department of Wildlife (NDOW) to work with State and Federal agencies and the interested public to implement Nevada's conservation plan for sage-grouse (Nevada E.O. 2008–10–29). The Executive Order also directs other State agencies to coordinate with the NDOW in these efforts. Further, the Nevada Conservation Credit System establishes a mitigation market to facilitate exchanges between credit sellers and buyers. In November 2012, the Governor signed Executive Order 2012–09 establishing the Sagebrush Ecosystem Council, a multiagency and multidiscipline group that was tasked with developing a conservation strategy for sage-grouse in Nevada. In October 2014, the Sagebrush Ecosystem Council finalized the Nevada Greater Sage-grouse Conservation Plan (State of Nevada 2014, entire). The Nevada plan creates the Conservation Credit System, which creates financial incentives for private landowners to conserve sage-grouse habitat for use as compensatory mitigation. Nevada's plan requires that any development that affects greater sage-grouse habitat in Nevada will need to acquire credits to compensate for those effects before the development proceeds. In addition, on June 23, 2015, the Governor signed emergency regulations related to the formation of Rural Fire Protection Associations (RFPAs) within the State of Nevada (NRS 472 per AB 163, sec. 3.5(1) of the 78th Session of the Nevada legislature). RFPAs, as seen in other States, help support fire suppression efforts by adding capacity and resources for fire suppression.
Utah issued a final conservation plan for the sage-grouse on February 14, 2013, and the Governor of Utah's Executive Order (Utah E.O. 2015/002) mandated its implementation on February 25, 2015. Utah's Plan and Executive Order includes mechanisms aimed at addressing threats to sage-grouse associated with fire, invasive species, predation, conifer
The Utah Plan addresses fire control, suppression, and rehabilitation by providing an organizational framework for partners to prioritize suppression efforts and fire rehabilitation, and leverage funding and agency resources (State of Utah 2013, p. 13). The Utah Governor's Executive Order also directs the Utah Division of Forestry, Fire and State Lands to prioritize fuels-mitigation activities and pre-attack planning and coordination with other Federal and local fire suppression partners, second only to the protection of human life and structures (State of Utah 2015, p. 4). Furthermore, the Utah Governor's Catastrophic Wildfire Reduction Strategy was completed in 2013, establishing a Statewide steering committee and regional working groups to develop a Statewide risk map that will include prioritized sage-grouse habitat areas (UDNR 2014, page 10).
Sage-grouse are State-listed as threatened in Washington. The State's recovery plan and actions implemented to date have relied heavily on voluntary conservation actions, on which the State and its partners have made progress (Stinson
As required by the Act, we considered the five factors in assessing whether the sage-grouse is endangered or threatened throughout all of its range. We examined the best scientific and commercial information available regarding the past, present, and foreseeable future threats faced by sage-grouse. Foreseeable future describes the extent to which we can reasonably rely upon predictions about the future (DOI 2009). In this context, “reliable” does not mean “certain”: It means sufficient to provide a reasonable degree of confidence in the prediction. Because information for each threat may be reliable for different periods of time, each threat may have different extents of foreseeability. The final conclusion may be a synthesis of this information.
For the purposes of this determination, we conclude that the foreseeable future is 20 to 30 years. This timeframe is based on the time horizons for which various threats can be reliably projected into the future. Many of the analyses on which we have relied, such as the fire modeling and the period for climate change predictions, cover a 30-year timeframe. Additionally, other potential threats will be governed by Federal and State Plans across the most important habitats as long as these plans are in place. Based on our assessment of existing BLM and USFS land use plans, the typical lifespan is 20 to 30 years (BLM 2015g). While these plans are in place, the extent of impacts from energy development, infrastructure, grazing, mining, and other regulated activities will be dictated by stipulations in these plans. Therefore, we can reliably predict over 20 to 30 years the extent of impacts from fire, climate change, and potential effects to the species and habitat addressed by the Federal Plans. Beyond these timeframes is a high degree of uncertainty, which precludes credible predictions of the effectiveness of actions that will be implemented beyond the planning horizon and how the species may or may not respond. Exceeding this timeframe, we have concluded, goes into the realm of speculation.
Our regulations direct us to determine if a species is endangered or threatened due to any one or a combination of the five threat factors identified in the Act (50 CFR 424.11(c)). We consider cumulative effects to be the potential threats to the species in totality and combination; this finding constitutes our cumulative effects analysis. The discussions above evaluated the individual impact of the following potential threats to the sage-grouse: Nonrenewable energy development (Factor A), infrastructure (Factor A), agricultural conversion (Factor A), wildfire and invasive plants (Factor A and E), improper grazing (Factor A), free-roaming equids (Factor A), conifer encroachment (Factor A), mining (Factor A), renewable energy (Factor A), predation (Factor C), disease (Factor C), urbanization (Factor A), recreation (Factor A), climate change (Factor E), drought (Factor A), hunting (Factor B), scientific and educational use (Factor B), contaminants (Factor A), military activities (Factor A), and small populations (Factor E). We also evaluated the inadequacy of existing regulatory mechanisms (Factor D). As discussed above, based on new information and effective regulatory mechanisms implemented since the 2010 finding, we determined that none of these impacts are substantial threats to the sage-grouse individually. Additionally, despite past reductions in occupied range, sage-grouse currently occupy 56 percent of their historical range. In this section, we evaluate whether some or all of these impacts act cumulatively to increase the overall scope and magnitude of potential effects to the sage-grouse now and into the foreseeable future such that cumulative effects are a threat to the species.
The sagebrush ecosystem has changed over time. Prior to the influence of human settlement, the sage-grouse inhabited parts of 13 states and 3 Canadian provinces. Before European settlers converted sagebrush habitats to croplands and pasturelands in the 1800s, natural events, such as blizzards, droughts, and large wildfires historically impacted sage-grouse. With the arrival of European settlers, agricultural conversion, urbanization, energy development, and other activities increased the loss and fragmentation of sage-grouse habitats across the overall range. Due to the historical loss and fragmentation of sagebrush habitats, sage-grouse now occupy approximately 56 percent of their historical range. Despite historical losses of occupied range, today the sage-grouse is relatively well-distributed across portions of 11 states and 2 Canadian provinces. The sagebrush ecosystem upon which the sage-grouse depends remains one of the largest, most widespread ecosystems in the United States, spanning approximately 70 million ha (173 million ac).
Declines in the extent of the sagebrush ecosystem and sage-grouse populations have been a concern for more than 25 years. Since 1999, we have reviewed 8 petitions and reviewed the status of the species 3 times. In our first evaluation completed in 2005, we found that listing the sage-grouse was not warranted because the species occurred over a large area and potential threats
The 2010 finding serves as the baseline for this current review. In the 2010 finding, we concluded that sage-grouse was warranted for listing because of habitat loss and fragmentation due to a variety of causes, such as nonrenewable energy development, agricultural conversion, wildfire, and infrastructure and the inadequacy of regulatory mechanisms to address these conditions. We acknowledged the existence of substantial landscape elements containing high-quality habitat and abundant sage-grouse, particularly in southwestern Wyoming and in the northern Great Basin, but expressed concern that, without adequate regulatory mechanisms, habitat loss, and abundance, declines would continue (75 FR 13910, March 23, 2010, pp. 13986–13988). As noted in that finding, when determining its listing priority status, we considered the threats that the sage-grouse faced to be moderate in magnitude because the threats did not occur everywhere across the range, and, where they were occurring, they were not of uniform intensity or of such magnitude that the species required listing immediately to ensure its continued existence. While sage-grouse habitat had been lost or altered in many portions of the species' range, substantial habitat still remained to support the species in many areas of its range (75 FR 13910, March 23, 2010, pp. 14008–14009).
In the 2010 finding, we identified the types of conservation actions that would remediate or ameliorate these threats, and encouraged land managers and other interested parties to implement such measures. In particular, we noted that the Federal Plans could provide adequate regulatory mechanisms to address the threats of nonrenewable and renewable energy development and infrastructure if they were amended to consider sage-grouse conservation needs (75 FR 13910, March 23, 2010, p. 13982). Further, we recommended changes in prevention, suppression, and restoration activities to address threats from the wildfire and invasive plant cycle. This current finding describes the extent to which recent conservation efforts—particularly the Federal and State Plans—have addressed the impact of potential threats and positively affected the species' status.
Since 2010, Federal and State agencies have collaborated on the development of landscape-scale conservation efforts to protect the most important habitats across the range of the species (as discussed in detail in Changes Since the 2010 Finding, above). The 2013 COT Report outlined where those most important habitats occurred (also known as PACs) and identified them as the areas necessary for species' resilience, redundancy, and representation. The COT Report also provided conservation objectives and recommended conservation actions to preserve the PACs and served as the foundation of a landscape-level conservation strategy (Federal, State, and private) developed and implemented by BLM, USFS, SGI, the States of Wyoming, Montana and Oregon, and private landowners. Together, the Federal Plans, Wyoming Plan, Montana Plan, and Oregon Plan reduce potential threats on 90 percent of sage-grouse breeding habitat across the species' range. These conservation efforts result in the preservation of large expanses of undisturbed habitat supporting the largest, best-connected sage-grouse populations into the foreseeable future.
The Federal Plans, Wyoming Plan, Montana Plan, and Oregon Plan provide adequate regulatory mechanisms to reduce the threats of human-caused habitat disturbance on the most important sage-grouse habitats (as discussed in detail in the Changes Since the 2010 Finding, above). The Federal Plans designate PHMAs, and the State Plans designate Core Areas, all of which correspond closely with the PACs identified in the COT Report and include important breeding and seasonal habitats for the species. The PHMAs and Core Areas are managed for sage-grouse habitat objectives, primarily by excluding or avoiding major new surface-disturbing activities that could cause habitat destruction (BLM and USFS 2015, entire). For example, in many important habitats, the Federal Plans require NSO for nonrenewable energy development, which results in no new oil and gas wells or associated infrastructure being constructed within PHMAs. For the few ongoing land uses that could continue to occur in PHMAs, such as limited wind development in certain areas and existing rights for nonrenewable energy or mining, the Federal, Wyoming, Montana, and Oregon Plans work together to limit the total amount of human-caused habitat disturbance on PHMAs and Core Areas to no more than 3 to 5 percent. To prevent indirect impacts to sage-grouse that could occur from land uses in areas outside of PHMAs and Core Areas, the Federal Plans, Wyoming Plan, Montana Plan, and Oregon Plan all require lek buffers so that breeding birds will not be disturbed by human activities. Lastly, the Federal Plans require any project that may adversely affect sage-grouse (in both PHMA and GHMA) to minimize impacts by implementing RDFs and mitigating to a net conservation benefit for sage-grouse. As a result of these measures, the Federal and three State Plans reduce the potential threat of habitat loss caused by human-caused disturbances on approximately 90 percent of breeding habitat across the species' range. These measures were effective immediately upon the implementation of the Federal Plans, the Wyoming Plan, the Montana Plan, and the Oregon Plan and will be in place for the next 20 to 30 years.
Wildfire and its interaction with invasive annual grasses, especially cheatgrass, is a significant risk to the sage-grouse and its habitat. In 2010, we determined that the combination of wildfire and invasive plants was a threat to the sage grouse and a major contributor to our finding that protection for the sage-grouse was warranted. Some wildfires will continue in the Great Basin, as we cannot manage the lightning strikes that spark many wildfires. Between 2000 and 2014, just less than one percent of sage-grouse habitat has burned per year. A recent modeling study predicts there could be a 43 percent decline in sage-grouse abundance within the next 30 years unless effective management is implemented to reduce the effects of wildfire and invasive plants.
The Federal and State Plans include commitments to change ongoing land uses and to prioritize wildfire management and invasive plant treatments in ways that reduce the synergistic threat of flammable invasive vegetation and altered wildfire regimes to sage-grouse habitats (as discussed in detail in Changes Since the 2010 Finding, above). Within the Great Basin, where wildfire is most prevalent, the majority of breeding habitat is in habitats that are most resilient to invasive plants and wildfire. To reduce the magnitude and severity of future wildfires, FIAT assessments prioritize wildfire and invasive plant management strategies in those most resilient areas that reduce the risk of habitat loss from wildlife and invasive plants. Fire and its impacts will be managed across the landscape by the implementation of the FIAT assessments and the Secretarial Order that prioritize suppression of wildfire in sage-grouse habitat. When a wildfire occurs in sage-grouse habitat, suppression in sage-grouse habitat will
In addition to the benefits provided by the regulatory mechanisms and management activities in PHMAs and SFAs, the Federal Plans require new minimization measures in GHMA, where habitat is important for connectivity between populations and restoration opportunities (as discussed in detail in Changes Since the 2010 Finding, above). In GHMA, the plans reduce potential threats from human-caused disturbances by avoiding certain uses, such as infrastructure. When land-uses are allowed, science-based lek buffers (Manier
Some other minor potential threats exist such as hunting, disease, predation, recreational activities, and scientific use. As discussed in the assessment of those potential threats (see Summary of Information Pertaining to the Five Factors, above), some minor or localized adverse effects may occur, but the best available information does not indicate that rangewide population-level effects are occurring. For example, while sage-grouse hunting continues to be allowed in several States, it is highly regulated and monitored with season and bag limits adjusted based on population monitoring so that this activity does not negatively impact the sustainability of this species. In addition, some of those potential threats are ameliorated by the Federal and State Plans, as the exclusion or limitation on land uses thereby further minimizes these minor potential threats. For example, exclusion of surface development of nonrenewable energy in PHMA and Core Areas and RDFs for those projects in GHMA prevents the creation of human-made water sources that provide breeding habitat for mosquitos that are vectors for WNv, thus reducing the potential for disease outbreaks in sage-grouse populations.
In addition to the Federal and State Plans, extensive work by private landowners is an important part of the rangewide sage-grouse conservation effort that has been implemented since 2010 (as discussed in detail in Changes Since the 2010 Finding, above). Private lands comprise about 39 percent of the species' range and contain some key habitat types that are important to sage-grouse. Since 2010, SGI has completed targeted sage-grouse habitat restoration and enhancement actions on more than 1.8 million ha (4.4 million ac) of private ranchlands throughout the species' occupied range. This work includes conifer removal, which will be strategically implemented through use of new conifer mapping (NRCS 2015a, 19). It also includes more than 180,000 ha (450,000 ac) of conservation easements that protect sage-grouse habitat from future agricultural conversion or urban and exurban development. The SGI is also actively engaged in the BLM and USFS efforts to address the wildfire and invasive plants cycle by working with ranchers to implement grazing practices and fuels treatments to improve resistance and resilience of the sagebrush ecosystem. The NRCS has committed 198 million dollars to continue these efforts, with a goal of doubling previous accomplishments by 2018 (NRCS 2015a, p. 30, NRCS 2015b, p. 6).
Private lands conservation has occurred in Oregon and Wyoming with the completion of CCAAs that provide opportunities for enrollment for all private lands within those States (as discussed in detail in Changes Since the 2010 Finding, above). Programmatic and Umbrella CCAAs in these States provide sage-grouse guidance for ranch management practices, ensuring that enrolled lands will be managed to benefit sage-grouse. The programmatic agreements in Oregon provide a framework for other landowners to easily enroll without a large amount of time and paperwork, making it likely that others will enroll in the future. These agreements have resulted in substantial private lands conservation for sage-grouse. For example, landowners in Oregon have either completed enrollment or have signed formal letters of intent to enroll, representing more than 575,000 ha (1.4 million ac) of private rangeland in Oregon. In Wyoming, a completed umbrella CCAA covers important private lands in the range of the sage-grouse, and 36 private landowners have completed CCAAs in Wyoming under this programmatic CCAA. Collectively, there are 180,223 ha (445,343 ac) of private and State lands in the umbrella CCAA.
To summarize, in the 2010 finding, we determined that the regulatory mechanisms needed to address the loss and fragmentation of sage-grouse habitats were inadequate. Five years later, and following an unprecedented conservation planning effort by Federal, State, local, and private partners, we now determine that regulatory mechanisms and conservation efforts adequately address the loss and fragmentation of sage-grouse habitats based on the following reasons:
• The BLM and USFS have successfully amended or revised 98 land use plans that
• The States of Wyoming, Montana, and Oregon completed plans with regulatory mechanisms that effectively reduce the loss and fragmentation of sage-grouse habitats. Collectively, the Federal Plans and three State Plans reduce impacts on more than 90 percent of sage-grouse breeding habitat under this umbrella of Federal and State protection.
• The implementation of the FIAT and Secretarial Order is reducing and restoring habitat lost to wildfire in important sage-grouse habitats and making the protection and rehabilitation of sage-grouse habitats a priority second to human health and safety. During the 2015 wildfire season, we are already seeing the positive results of these focused efforts to reduce habitat loss and fragmentation from wildfire.
• The SGI, led by the NRCS, is working with private landowners across the range of the sage-grouse. The initiative targets land within priority sage-grouse habitat and is improving rangeland health on more than 2.4 million acres.
• We have worked with the States and private landowners, especially in Oregon and Wyoming, to implement CCAAs that cover more than 1.8 million acres. These agreements will ensure the conservation of sage-grouse habitat while providing working landscapes for the landowners.
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.”
We recognize that all impacts to the species have not been completely eliminated, and that existing and ongoing activities will continue to affect the species and its habitat. Therefore, it is likely that, over the foreseeable future, there will be some reduction in available habitat quantity and quality, some decrease in the relative population index, and local range contraction (including the loss of some small populations on the edges of the species' range). The conservation efforts included in this analysis, however, have significantly reduced the impacts in the most important habitats for the species. These areas are highly correlated with the PACs identified in the COT Report as areas necessary for sufficient representation, resilience, and redundancy to ensure persistence of the species.
The conservation efforts by Federal, State, and private partners have greatly changed the likely trajectory of the species from our 2010 projections when we determined that the species warranted listing. We conclude that, taking into account the potential, but now minimized, effects to the species over the foreseeable future, the species is not likely to become endangered within the foreseeable future because of the number of large, connected populations distributed across the species' range and the unprecedented level of conservation actions now in place for 90 percent of the breeding habitat across the species' range. In other words, even with the remaining likely reduction in habitat and populations discussed above, the sage-grouse will retain sufficient representation, resilience, and redundancy throughout the foreseeable future.
The sage-grouse has a broad distribution across the seven MZs, 11 States, and 2 Canadian Provinces. Despite historical reductions in occupied range, sage-grouse occupy approximately 703,453 km
The new Federal land-management paradigm is established in 98 amended Federal Plans that reduce and minimize threats to the species in the most important habitat for the species. Several States have adopted their own regulatory measures to reduce habitat loss and fragmentation on non-Federal lands. Many private landowners have also engaged in proactive conservation efforts that provide additional benefits to the species and indicate a shift in cultural attitudes towards the sagebrush ecosystem. Together, the Federal Plans and State Plans in Wyoming, Montana, and Oregon reduce threats on approximately 90 percent of the breeding habitat across the species' range. Looking ahead, we expect these conservation efforts will continue to be implemented for the next 20 to 30 years, ensuring the protection of the most important habitats so that large sage-grouse populations continue to be distributed across the species' range. These conservation efforts occur in the areas needed for redundancy, representation, and resilience of the species.
Therefore, we find that the magnitude and imminence of threats either individually or in combination do not indicate that sage-grouse is currently in danger of extinction (endangered). Further, based on our analysis and the conservation provided by the conservation efforts described throughout this document, we find that the magnitude and imminence of threats either individually or in combination do not indicate that the sage-grouse is likely to become endangered within the foreseeable future (threatened). Therefore, based on our assessment of the best available scientific and commercial information, we find that listing the sage-grouse as a threatened or an endangered species is not warranted at this time.
Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so throughout all or a significant portion of its range. The Act defines “endangered species” as any species which is “in danger of extinction throughout all or a significant portion of its range,” and “threatened species” as any species which is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The term “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment (DPS) of any species of vertebrate fish or wildlife which interbreeds when mature.” We published a final policy interpreting the phrase “Significant Portion of its Range” (SPR) (79 FR 37578, July 1, 2014). The final policy states that (1) if a species is found to be endangered or threatened throughout a significant portion of its range, the entire species is listed as an endangered or a threatened species, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently endangered or threatened throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or
The SPR policy is applied to all status determinations, including analyses for the purposes of making listing, delisting, and reclassification determinations. The procedure for analyzing whether any portion is an SPR is similar, regardless of the type of status determination we are making. The first step in our analysis of the status of a species is to determine its status throughout all of its range. If we determine that the species is in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range, we list the species as an endangered (or threatened) species and no SPR analysis will be required. If the species is neither in danger of extinction nor likely to become so throughout all of its range in the foreseeable future, we then determine whether the species is in danger of extinction or likely to become so in the foreseeable future throughout a significant portion of its range. If it is, we list the species as an endangered or a threatened species, respectively; if it is not, we conclude that listing the species is not warranted.
When we conduct an SPR analysis, we first identify any portions of the species' range that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that are not reasonably likely to be significant and endangered or threatened. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that (1) the portions may be significant and (2) the species may be in danger of extinction in those portions or likely to become so within the foreseeable future. We emphasize that answering these questions in the affirmative is not a determination that the species is endangered or threatened throughout a significant portion of its range—rather, it is a step in determining whether a more detailed analysis of the issue is required. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are affecting it uniformly throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats applies only to portions of the range that clearly do not meet the biologically based definition of “significant” (
If we identify any portions that may be both: (1) Significant; and (2) endangered or threatened, we engage in a more detailed analysis to determine whether these standards are indeed met. The identification of an SPR does not create a presumption, prejudgment, or other determination as to whether the species in that identified SPR is endangered or threatened. We must go through a separate analysis to determine whether the species is endangered or threatened in the SPR. To determine whether a species is endangered or threatened throughout an SPR, we will use the same standards and methodology that we use to determine if a species is endangered or threatened throughout its range.
Depending on the biology of the species, its range, and the threats it faces, it may be more efficient to address the “significant” question first, or the status question first. Thus, if we determine that a portion of the range is not “significant,” we do not need to determine whether the species is endangered or threatened there; if we determine that the species is not endangered or threatened in a portion of its range, we do not need to determine if that portion is significant.
Because we determined that the sage-grouse is neither endangered nor threatened throughout all of its range, due largely to the effective reduction and amelioration of threats by ongoing and future regulatory mechanisms and other conservation efforts, we must next determine whether the sage-grouse may be endangered or threatened in a significant portion of its range. To do this, we must first identify any portion of the species' range that may warrant consideration by determining whether there is
While the overall range of the sage-grouse could be subdivided into numerous portions, there are four primary biological divisions based on differences in populations and the concentrations of potential threats. These four portions are: The bi-State population in Nevada and California; the Columbia Basin population in Washington; and the Rocky Mountain and Great Basin portions of the range. We previously evaluated the status of the bi-State population and determined that listing is not warranted. We now consider the Columbia Basin population to be part of the Great Basin portion of the range. The range of the sage-grouse is the general geographical area within which the species is found at the time of this finding. Specifically, the current range of the sage-grouse covers 11 States (Washington, Oregon, California, Nevada, Idaho, Montana, Wyoming, Colorado, Utah, South Dakota, and North Dakota), and two Canadian provinces (Alberta and Saskatchewan), and encompasses all the current populations of sage-grouse, with the exception of the bi-State sage-grouse Distinct Population Segment, and the intervening habitat (Figure 1, above). Analyzing the threats to the Rocky Mountain and Great Basin populations also satisfies the requirement of the Act to address populations and threats in significant portions of the sage-grouse's overall range.
We first evaluated whether potential threats to the sage-grouse might be geographically concentrated in any one portion of its range. We examined impacts to sage-grouse from fire, invasive plants, conifer encroachment, agricultural conversion, renewable- and nonrenewable-energy development, mining, infrastructure, fences, improper grazing, free-roaming equids, urban and exurban development, recreation, climate change, drought, recreational hunting, scientific and educational purposes, disease, predation, contaminants, military activities, small populations, the inadequacy of regulatory mechanisms, and cumulative effects. In our rangewide finding, we determined that impacts to the sage-grouse are found throughout its range. Although these potential threats occur throughout the current range, they are concentrated differently between eastern and western portions of the range. Additionally, there are differences in the composition and ecology of sagebrush habitats in the eastern versus the western portions of the range, and sage-grouse are variably distributed across the landscape from
The eastern, or Rocky Mountain portion (MZs I, II, and VII), of the species' current range covers approximately half of the occupied range, contains approximately 49 percent of the sage-grouse estimated abundance, and generally contains sagebrush habitat that is higher in elevation and receives greater amounts of precipitation (Figure 1). The western or Great Basin (MZs III, IV, V, and VI) portion of the species' current range similarly covers about half of the occupied range and approximately 51 percent of the sage-grouse, but contains sagebrush habitat that is lower in elevation and receives less precipitation (Figure 1). Concentrations of potential threats differ between these two portions of the range, with nonrenewable energy development, agricultural conversion, and infrastructure more concentrated in the Rocky Mountain portion, while wildfire and invasive species are more concentrated in the Great Basin portion. The Great Basin portion of the range includes the sage-grouse populations in the Columbia Basin (MZ VI).
Because some potential threats are more concentrated in either the Rocky Mountain or Great Basin portions, we determine that the Rocky Mountain and Great Basin portions warrant further consideration as potential significant portions of the range. Next we evaluate whether the sage-grouse is threatened or endangered in either the Rocky Mountain or Great Basin portions of its current range.
The current range of the sage-grouse could theoretically be divided into an infinite number of portions. In the first step of our significant portion of the range analysis, we identified the Rocky Mountains and the Great Basin as portions that warrant further consideration. Both portions represent approximately half of the current range, and the entire sage-grouse population is distributed equally between both portions. As we discussed in the Bi-State Distinct Population Segment section of this document above, the Columbia Basin represents less than 1 percent of the species' occupied range less than 3 percent of the breeding habitat, and its loss would not result in a significant gap in the occupied range of the sage-grouse. Therefore, the Columbia Basin does not contribute to the overall viability of the species and does not meet the definition of “significant” under the SPR policy. We did not identify any other portions within these larger portions that warrant further consideration because the potential threats are not substantially concentrated within any areas other than the Rocky Mountain or Great Basin portions, that are particularly large, constitute a particularly high percentage of the species' range, or are likely to be particularly important for the representation, resilience, or redundancy of the species. Therefore, we conclude that any portions of the range within the Rocky Mountain and Great Basin portions that we have identified do not warrant further consideration as significant portions of the range.
In our 2010 finding, we were concerned with long-term declines in abundance trends for the Rocky Mountain MZs (MZs I, II, and VII), and we identified a number of threats likely contributing to those declines (75 FR 13910, March 23, 2010). The most important threats identified for the Rocky Mountain portion of the range were habitat loss and fragmentation from energy development, infrastructure, and agricultural conversion; disease—particularly WNv; loss of habitat from improper livestock management; and inadequacy of regulatory mechanisms limiting human-caused impacts. Of these threats, the most significant of these involved a combination of habitat loss and fragmentation from infrastructure and energy development, and inadequate regulatory mechanisms to address these impacts.
The potential threats from fire, invasive grasses, free-roaming equids, conifer encroachment, and urban and exurban development have only limited, localized impacts to sage-grouse in the Rocky Mountain portion of the range now and into the foreseeable future. In addition, our evaluation of the Rocky Mountain portion of the current range focuses primarily on those potential threats most likely to affect, individually or cumulatively, sage-grouse in the Rocky Mountains, which does not include urban and exurban development, recreation, climate change and drought, recreational hunting, scientific and educational uses, contaminants, and military activity. Those threats that are likely to affect sage-grouse in the Rocky Mountains are summarized below. Full discussions of each of these potential threats can be found in Summary of Information Pertaining to the Five Factors (above).
Due to new regulatory mechanisms and conservation efforts, the potential threats identified in 2010 have been adequately ameliorated in the Rocky Mountain portion of the range. Historically, agricultural conversion reduced and fragmented sage-grouse habitats in the Rocky Mountain portion of the range, primarily in MZ I. However, the new cropland risk model (described above in the
We identified improper livestock management as a source of habitat loss and fragmentation in 2010. Since that time, rangeland-health standards in the Federal Plans, Wyoming and Montana State Plan requirements, and SGI practices of applying grazing systems, vegetating former rangeland with sagebrush and perennial grasses, and controlling invasive grasses, effectively ameliorate this threat to the sage-grouse in the Rocky Mountain portion of the range, now or in the future.
Renewable energy development has not occurred extensively within the Rocky Mountains, but potential exists, particularly for wind development. Infrastructure exists throughout the Rocky Mountains and will likely continue into the future. For each of these impacts, the regulatory mechanisms provided by Federal Plans, the Montana Plan, and the Wyoming Plan substantially reduce this potential impact by restricting new development in important sagebrush habitats. Coal mining, the primary kind of mining occurring in the Rocky Mountains, has generally declined since 2008. Regulatory mechanisms provided by the Federal Plans exclude new leasable (except coal) and saleable mineral
As described in the Summary of Information Pertaining to the Five Factors (above), we also evaluated the impacts of predation and disease and found that, although they present localized impacts, they were not likely to result in population-level effects. This remains true when reviewing the information for the Rocky Mountain portion of the range.
Since the 2010 finding, many parties have collaborated to develop comprehensive strategies that ameliorate the major potential threats, consistent with the COT Report. The Federal Plans and Wyoming and Montana Plans provide adequate regulatory mechanisms to reduce the threats of human-caused habitat disturbance on the most important sage-grouse habitats (as discussed in detail in the Changes Since the 2010 Finding, above). The Federal Plans designate PHMA, and the Wyoming and Montana Plans designate Core Areas, all of which correspond closely with the PACs identified in the COT Report. In the Rocky Mountain portion of the range, more than 67 percent of the sage-grouse breeding habitat distribution is protected as PHMA and more than 30 percent is protected as GHMA.
The Federal Plans address the primary potential threats that reduce and fragment sage-grouse habitats on BLM- and USFS-administered lands in the Rocky Mountain portion of the range, including infrastructure and energy development. All forms of development—from energy, to transmission lines, to recreation facilities and grazing structures—would be avoided in PHMA unless a further assessment found that the project would not adversely affect the sage-grouse. Consistent with COT guidance, a limited amount of development could occur in GHMAs, although additional conservation measures, such as lek buffers, seasonal and timing restrictions, and project-design features, will minimize potential effects in GHMA.
In conjunction with the Federal Plans, the Wyoming Plan incorporates stipulations and conservation measures, such as controlled surface use, seasonal and noise restrictions, consultation requirements, density of development restrictions, and lek buffers to reduce impacts associated with energy development on all lands within Core Areas in Wyoming. The Montana Plan includes a regulatory mechanism similar to the Core Area Strategy to reduce impacts associated with energy development in Core Areas on State-owned lands and private lands when a State authorization is required. The Montana Plan also requires similar conservation measures to reduce impacts, such as seasonal and noise restrictions, density development restrictions, and lek buffers.
Finally, conservation efforts on private lands through SGI and CCAAs reduce potential threats in the Rocky Mountain portion of the range. SGI efforts with ranchers to address grazing systems and fences, to implement habitat restoration, and to provide conservation easements have protected sage-grouse habitat from further fragmentation; NRCS' commitment to adaptive management, partnerships, and flexibility in conservation approaches ensures continued and constantly improving conservation on private lands within sage-grouse habitat. In Wyoming, a completed umbrella CCAA covers important private lands in the range of the sage-grouse, and 30 private landowners have completed CCAAs in Wyoming under this programmatic CCAA. Collectively, there are 180,223 ha (445,343 ac) of private and State lands committed within the umbrella CCAA, 112,212 ha (277,282 ac) of which are located within sage-grouse Core Areas, and 8,235 ha (20,348 ac) are in connectivity areas.
By taking a landscape-level view that spans land ownership in the Rocky Mountain portion of the range, these conservation efforts have significantly reduced the potential threats to sage-grouse now and in the foreseeable future. Many of these conservation efforts are regulatory mechanisms on Federal lands that are managed consistently by BLM and USFS in the five Rocky Mountain States (MT, WY, CO, ND, and SD). Similar regulatory mechanisms are provided by Montana and Wyoming State Plans and Executive Orders to reduce potential impacts on non-Federal lands in those States. These regulatory mechanisms are finalized, are currently being implemented, and are likely to continue to be implemented for the next 20 to 30 years. In addition, SGI and private land owners have implemented conservation projects across the Rocky Mountain portion of the range, further contributing to sage-grouse conservation. The SGI has committed to continue this work for the next 3 years, ensuring private land conservation will continue to be implemented through the authorization of the next Farm Bill (NRCS 2015a, p. 2). All of these conservation actions are consistent with the COT Report recommendations and scientific literature, which indicates they will effectively conserve sage-grouse.
Based on Federal and State regulations and conservation efforts, the risk and exposure of the sage-grouse to the potential threats of nonrenewable-energy development, agricultural conversion, and habitat fragmentation from infrastructure and other development are significantly reduced. These conservation efforts are ameliorating the potential threats and decreased the amount and rate of development well below what was expected, and by minimizing and mitigating impacts to sage-grouse, have significantly addressed threats facing sage-grouse as described in the 2010 finding, the COT Report, and other published scientific findings. In the Rocky Mountain portion, some habitat loss associated with energy development, infrastructure, agricultural conversion, and urbanization will continue into the future.
Some sage-grouse populations may continue to decline in some parts of the Rocky Mountains. However, the existing and future effective regulatory mechanisms and conservation efforts in the Rocky Mountain portion of the range will protect the most important habitats and maintain relatively large, well-distributed, and interconnected sage-grouse populations across much of the eastern portion of its range. Since the 2010 finding, there has been an unprecedented and substantial proactive conservation effort to reduce potential habitat loss and fragmentation from infrastructure and energy development. More than 67 percent of the sage-grouse breeding habitat in the Rocky Mountains is protected by PHMA, where no development will occur, and more than 30 percent is protected by GHMA, where required conservation measures will avoid and reduce adverse effects. Therefore, we determined that, due to the combination of regulations on Federal lands and regulatory and voluntary measures on private lands that provide adequate avoidance and mitigation, these potential threats are effectively being reduced in the Rocky Mountain portion of the range.
Therefore, we conclude that sage-grouse in the Rocky Mountain portion of
In our 2010 finding, we identified long-term declines in sage-grouse abundance trends for the Great Basin MZs, and we identified a number of threats likely contributing to those declines (75 FR 13910, March 23, 2010). The most important threats identified in the 2010 finding for the Great Basin were: Wildfire, invasive plants, conifer invasion, habitat fragmentation, climate change, loss of habitat quality due to improper livestock and free-roaming equid grazing, and the inadequacy of regulatory mechanisms to address human-caused impacts such as energy and infrastructure development. Of these threats, the greatest concern in the Great Basin was habitat loss and fragmentation from wildfire and invasive plants. Currently, the primary potential threats to sage-grouse in the Great Basin include wildfire and its synergistic effects with invasive plants. We will also specifically summarize habitat loss and fragmentation due to conifer encroachment, mining, renewable energy, and infrastructure in the Great Basin. Our evaluation of the Great Basin portion of the current range focuses primarily on those potential impacts most likely to affect, individually or cumulatively, sage-grouse in the Great Basin and does not include urban and exurban development, recreation, predation, climate change and drought, recreational hunting, scientific and educational uses, contaminants, and military activity. Full discussions of each of these potential threats can be found in Summary of Information Pertaining to the Five Factors (above).
Wildfire and its synergistic relationship with invasive species, climate change and drought, improper grazing, and free-roaming equids was identified in the 2010 finding as the most serious threat to sage-grouse populations in the Great Basin. Wildfire is a natural and integral part of the Great Basin landscape, and will continue into the future. A recent study predicts that a 43 percent decline in Great Basin sage-grouse populations could occur by 2044 if no additional management is implemented to address the wildfire and invasive plant cycle. If conservation measures reduce the area burned by at least 25 percent, the rate of population decline is likely to be reduced. Further, the study emphasizes the importance of implementing conservation actions in areas of moderate and high resistance and resiliency and containing high densities of sage-grouse. The FIAT Assessments and Secretarial Order conservation measures are consistent with this recommendation to prioritize implementation actions in places most likely to be effective and to provide the greatest benefit for sage-grouse. Therefore, we conclude the continued implementation of FIAT and the Secretarial Order will reduce the rate of decline in the Great Basin over the next 30 years.
Through the Federal Plans, the BLM and USFS have established land health standards that now consider and incorporate sage-grouse habitat needs. The Federal Plans restrict grazing in areas that are not meeting standards, and the agencies will manage free-roaming equid populations at levels that minimize impacts to the most important sage-grouse habitats. Voluntary conservation through SGI's invasive species removal programs, improved grazing practices, and the enhancement and protection of healthy rangeland conditions further improve habitat for sage-grouse in the Great Basin. Finally, State conservation efforts in Oregon have further reduced the impacts of wildfire, invasive plants, grazing, and free-roaming equids through regulatory mechanisms.
These and many other positive conservation activities described in this finding were not implemented, planned, or certain to occur when the 2010 warranted finding was completed, leading us to conclude that sage-grouse warranted protections of the Act. The regulatory mechanisms and commitments to manage wildfire and invasive plants will result in a substantial reduction of habitat lost to these impacts, such that sage-grouse populations will continue to be distributed and connected across the Great Basin. Therefore, because the potential impacts have been substantially reduced by effective regulatory mechanisms and the ongoing implementation of conservation efforts, wildfire and the associated synergistic effects from invasive species, climate change and drought, improper grazing, and free-roaming equids are not substantial threats to the sage-grouse within the Great Basin portion of the range, now or in the future.
In addition to wildfire and its synergistic impacts, habitat loss from conifer encroachment has also been identified as a concern in the Great Basin. Conifers are a natural component of the sagebrush ecosystem, and, if not actively managed, are expected to continue to expand, resulting in additional loss of habitat in the Great Basin. However, Federal and State Plan vegetation objectives and on-the-ground removal of conifers through SGI and State efforts have reduced impacts of this potential threat. For the next 3 years, SGI has committed to continue this work, ensuring private land conservation will continue to be implemented (NRCS 2015a, p. 2; NRCS 2015b, p. 6). As a result of direction provided in State and Federal Plans and ongoing implementation of SGI, the rate of encroachment and habitat loss is reduced such that conifer encroachment is not a threat in the Great Basin portion of the range, now or in the future.
Development due to mining, renewable energy, and infrastructure continues to occur in the Great Basin. As discussed above (see
Since the 2010 finding, many parties have collaborated to develop comprehensive strategies that would substantially ameliorate the major potential threats, consistent with the COT Report. Through Federal Plans, State Plans, and voluntary conservation on private lands through CCAA and SGI, the Great Basin is being actively managed for the benefit of sage-grouse.
The Federal Plans provide clear management regulations with measurable objectives to address invasive annual grasses, conifer encroachment, improper grazing, and free-roaming equids. They prioritize management in the most important habitat (PHMA), which encompasses approximately 60 percent of the
The majority of sage-grouse habitat in the Great Basin occurs on Federal lands, making the Federal Plans' implementation most important for sage-grouse conservation in the Great Basin. However, States can help reduce potential threats through collaboration with Federal land managers and by promoting conservation outside Federal lands. To date, Oregon is the only State in the Great Basin that completed and implemented a plan that provides regulatory mechanisms. The Oregon Plan provides regulatory protections for sage-grouse habitat across all land ownerships, a coordinated mitigation system, wildfire management measures, and a development cap for Core Areas that is coordinated with the Federal Plans.
Threat reduction is also enhanced on private lands in the Great Basin through the SGI and associated Farm Bill programs. Throughout the western States, SGI has implemented targeted sage-grouse conservation practices on more than 4.4 million acres, and has allocated more than $424 million in project funding. In the Great Basin portion of the Range, SGI efforts with ranchers to address grazing systems and fences, to implement habitat restoration, and to provide conservation easements have protected sage-grouse habitat from further fragmentation. The NRCS made funding available from 2010 through 2018 to fund and implement the SGI program (NRCS 2015a, p. 2, NRCS 2015b, p. 6). Since 2010, SGI has implemented action on more than 1,000 ranches. NRCS' commitment to adaptive management, partnerships, and flexibility in conservation approaches ensures continued and constantly improving conservation on private lands within sage-grouse habitat. Based on the track record of successfully implemented conservation actions consistent with the COT Report recommendations and commitments to continue implementing the program, we conclude that the SGI program provides substantial conservation benefits to sage-grouse in the Great Basin, now and in the future.
The greatest amount of private lands conservation in the Great Basin has occurred in Oregon. In 2015, we completed a series of programmatic CCAAs for sage-grouse that potentially covers all private lands in the range in Oregon. In Oregon, more than 575,000 ha (1.4 million ac) of rangeland have been effectively conserved for sage-grouse through enrollment of private landowners in CCAAs. These programmatic agreements provide a framework for other landowners to easily enroll without a large amount of time and paperwork, making it likely that others will be enrolled in the near future.
This coordinated approach to conserve sage-grouse and sagebrush habitat has resulted in substantial reductions in all of the potential threats facing sage-grouse in the Great Basin in the foreseeable future. Many of these conservation efforts on Federal lands are consistent across the five States due to the management by BLM and USFS, while programs on non-Federal lands vary from State to State due to different regulatory, political, ecological, and economic circumstances in the respective States. Since 2010, many of the specific measures described in this finding are under way or are being finalized with actions to be implemented during the coming years. We have a high degree of certainty that the majority of the planned future actions will be implemented and will reduce the magnitude of potential threats facing the sage-grouse in the Great Basin.
Based on Federal, State, and private landowner efforts, the potential threats of wildfire (and associated, synergistic impacts from invasive plants, climate change and drought, improper grazing, and free-roaming equids), conifer encroachment, mining, and infrastructure have been reduced. Some habitat loss in the Great Basin portion associated with wildfire and invasive plants and conifer encroachment will continue into the future, and it is likely that sage-grouse populations will continue to decline in some parts of the Great Basin. However, we expect that the existing and future effective conservation efforts in the Great Basin portion of the range will reduce declines and will protect the most important sage-grouse habitat, resulting in relatively large, well-distributed, and interconnected populations across much of the western portion of its range. Since the 2010 warranted finding, Federal, State, and local entities to identify specific needs of this species and to provide resources for the conservation and protection of the species and its habitat. Due to these conservation efforts, the species will remain well-distributed and interconnected into the foreseeable future as these measures are implemented. Therefore, the sage-grouse is not a threatened or endangered species in the Great Basin portion of its range.
Our review of the best available scientific and commercial information indicates that the sage-grouse is not in danger of extinction nor likely to become endangered within the foreseeable future throughout all of its range. Additionally, we determined that the sage-grouse is not in danger of extinction now or within the foreseeable future throughout either the Rocky Mountain or Great Basin portions of its range. Therefore, the sage-grouse is not in danger of extinction nor likely to become endangered within the foreseeable future throughout a significant portion of its range. Therefore, we find that listing the sage-grouse as an endangered or threatened species under the Act is not warranted at this time.
The completion of this status review is not the end of our commitment to sage-grouse conservation. Our determination today is based on the best scientific and commercial data currently available. That determination, however, cannot guarantee that the sage-grouse (or other sagebrush ecosystem species) will not in the future warrant listing under the Act. New threats may develop, management may change, or the species may not prove as resilient as we concluded based on the currently available science. Thus, although our best judgment today indicates that successful sage-grouse conservation will be achieved by continued implementation of the regulatory mechanisms and conservation efforts we relied on in our finding above, we and our partners must carefully monitor threats to the sage-grouse and its response to those threats. Therefore, we will work with our Federal and State partners to conduct a sage-grouse status review in 5 years. This status review will inform adaptive management and guide future research needs to ensure that conservation efforts continue to
A complete list of references cited is available on the Internet at
The primary author(s) of this notice are the staff members of the U.S. Fish and Wildlife Service.
The authority for this action is section 4 of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Bureau of Consumer Financial Protection.
Final rule; official interpretations.
The Bureau of Consumer Financial Protection (Bureau) is amending certain mortgage rules issued by the Bureau in 2013. This final rule revises the Bureau's regulatory definitions of small creditor, and rural and underserved areas, for purposes of certain special provisions and exemptions from various requirements provided to certain small creditors under the Bureau's mortgage rules.
This final rule is effective on January 1, 2016. For additional discussion regarding the effective date of the rule see part VI of the
Jeffrey Haywood, Paralegal Specialist; Nicholas Hluchyj, Senior Counsel, or Paul Ceja, Senior Counsel and Special Advisor, Office of Regulations, at (202) 435–7700.
In January 2013, the Bureau issued several final rules concerning mortgage markets in the United States (2013 Title XIV Final Rules), pursuant to the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), Public Law 111–203, 124 Stat. 1376 (2010).
To that end, on January 29, 2015, the Bureau proposed several amendments to its 2013 Title XIV Final Rules to revise Regulation Z provisions and official interpretations relating to escrow requirements for higher-priced mortgage loans under the Bureau's January 2013 Escrows Final Rule and ability-to-repay/qualified mortgage requirements under the Bureau's January 2013 ATR Final Rule and May 2013 ATR Final Rule. The Bureau's proposal would also affect requirements under the Bureau's 2013 HOEPA Final Rule.
This final rule adopts, with some additional clarifications and technical revisions, the Bureau's proposed rule. It reflects feedback received from stakeholders through this notice and comment rulemaking regarding the Bureau's definitions of small creditor, and rural and underserved areas, as those definitions relate to special provisions and certain exemptions to requirements provided to small creditors under the Bureau's 2013 Title XIV Final Rules and updates.
Specifically, the final rule makes the following changes with regard to the definitions of small creditor and rural and underserved areas as currently provided in the Bureau's mortgage rules:
• Raises the loan origination limit for determining eligibility for small-creditor status from 500 originations of covered transactions secured by a first lien, to 2,000 such originations (referred to in this rule as “extensions of covered transactions”), and excludes originated loans held in portfolio by the creditor and its affiliates from that limit. The final rule also establishes a grace period from calendar year to calendar year to allow a creditor that exceeded the origination limit in the preceding calendar year to operate, in certain circumstances, as a small creditor with respect to transactions with applications received before April 1 of the current calendar year.
• Includes in the calculation of the $2 billion asset limit for small-creditor status the assets of the creditor's affiliates that regularly extended covered transactions. The final rule also adds a grace period to the annual asset limit, to allow a creditor that exceeded the asset limit in the preceding calendar year to operate, in certain circumstances, as a small creditor with respect to transactions with applications received before April 1 of the current calendar year.
• Adjusts the time period used in determining whether a creditor is operating predominantly in rural or underserved areas from any of the three preceding calendar years to the preceding calendar year. As with the origination and asset limits for small-creditor status, the final rule adds a grace period to allow a creditor that fails to meet this threshold in the preceding calendar year, to continue operating, in certain circumstances, as if it had met this threshold with respect to transactions with applications received before April 1 of the current calendar year.
• Amends the current exemption under § 1026.35(b)(2)(iii)(D)(
• Expands the definition of “rural” by adding census blocks that are not in an urban area as defined by the U.S. Census Bureau (Census Bureau) to the current county-based definition.
• Conforms the definition of “underserved” to the proposals discussed above. The substance of the “underserved” definition is not changed.
• Adds two new safe harbor provisions related to the rural or underserved definition for creditors that rely on automated tools provided: (1) On the Bureau's Web site to allow creditors to determine whether
• Extends the current two-year transition period, which allows certain small creditors to make balloon-payment qualified mortgages (§ 1026.43(e)(6)) and balloon-payment high-cost mortgages (§ 1026.32(d)(1)(ii)(C)), regardless of whether they operate predominantly in rural or underserved areas. The transition period will include covered transactions for which the application was received before April 1, 2016, rather than covered transactions consummated on or before January 10, 2016.
In addition to the changes discussed above to the definitions of small creditor and rural and underserved areas, this final rule is also making a technical correction to the commentary to § 1026.36(a). This non-substantive change is discussed in the section-by-section analysis of the supplementary information section below.
In response to an unprecedented cycle of expansion and contraction in the mortgage market that sparked the most severe U.S. recession since the Great Depression, Congress passed the Dodd-Frank Act, which was signed into law on July 21, 2010. In the Dodd-Frank Act, Congress established the Bureau and generally consolidated the rulemaking authority for Federal consumer financial laws, including the Truth in Lending Act (TILA) and the Real Estate Settlement Procedures Act, in the Bureau.
Under the statute, most of these new requirements would have taken effect automatically on January 21, 2013 if the Bureau had not issued implementing regulations by that date.
Concurrent with the January 2013 ATR Final Rule, on January 10, 2013, the Bureau issued the January 2013 ATR Proposal, which the Bureau adopted on May 29, 2013 in the May 2013 ATR Final Rule.
On January 29, 2015, the Bureau issued, and on February 11, 2015, published in the
The Bureau is issuing this final rule pursuant to its authority under TILA and the Dodd-Frank Act. Section 1061 of the Dodd-Frank Act transferred to the Bureau the “consumer financial protection functions” previously vested in certain other Federal agencies, including the Board of Governors of the Federal Reserve System (Board). The term “consumer financial protection function” is defined to include “all authority to prescribe rules or issue orders or guidelines pursuant to any Federal consumer financial law, including performing appropriate functions to promulgate and review such rules, orders, and guidelines.”
TILA as amended by the Dodd-Frank Act provides two specific statutory bases for the changes in the Bureau's final rule. TILA section 129D(c) authorizes the Bureau to exempt, by regulation, a creditor from the requirement (in section 129D(a)) that escrow accounts be established for higher-priced mortgage loans if the creditor operates predominantly in rural
This final rule also relies on other rulemaking and exception authorities specifically granted to the Bureau by TILA and the Dodd-Frank Act, including the authorities discussed below.
As amended by the Dodd-Frank Act, section 105(a) of TILA authorizes the Bureau to prescribe regulations to carry out the purposes of TILA. 15 U.S.C. 1604(a). Under section 105(a), such regulations may contain such additional requirements, classifications, differentiations, or other provisions, and may provide for such adjustments and exceptions for all or any class of transactions, as in the judgment of the Bureau are necessary or proper to effectuate the purposes of TILA, to prevent circumvention or evasion thereof, or to facilitate compliance therewith. A purpose of TILA is “to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various credit terms available to him and avoid the uninformed use of credit.” TILA section 102(a), 15 U.S.C. 1601(a). In particular, it is a purpose of TILA section 129C, as added by the Dodd-Frank Act, to assure that consumers are offered and receive residential mortgage loans on terms that reasonably reflect their ability to repay the loans and that are understandable and not unfair, deceptive, or abusive. 15 U.S.C. 1639b(a)(2).
Historically, TILA section 105(a) has served as a broad source of authority for rules that promote the informed use of credit through required disclosures and substantive regulation of certain practices. Dodd-Frank Act section 1100A clarified the Bureau's section 105(a) authority by amending that section to provide express authority to prescribe regulations that contain “additional requirements” that the Bureau finds are necessary or proper to effectuate the purposes of TILA, to prevent circumvention or evasion thereof, or to facilitate compliance therewith. This amendment clarified the Bureau's authority under TILA section 105(a) to prescribe requirements beyond those specifically listed in the statute that meet the standards outlined in section 105(a), which include effectuating all of TILA's purposes. Therefore, the Bureau believes that its authority under TILA section 105(a) to make exceptions, adjustments, and additional provisions that the Bureau finds are necessary or proper to effectuate the purposes of TILA applies with respect to the purpose of section 129D. That purpose is to ensure that consumers understand and appreciate the full cost of homeownership. The purpose of TILA section 129D is also informed by the findings articulated in section 129B(a) that economic stabilization would be enhanced by the protection, limitation, and regulation of the terms of residential mortgage credit and the practices related to such credit, while ensuring that responsible and affordable mortgage credit remains available to consumers.
TILA section 129C(b)(3)(B)(i) provides the Bureau with authority to prescribe regulations that revise, add to, or subtract from the criteria that define a qualified mortgage upon a finding that such regulations are necessary or proper to ensure that responsible, affordable mortgage credit remains available to consumers in a manner consistent with the purposes of the ability-to-repay requirements; are necessary and appropriate to effectuate the purposes of the ability-to-repay and residential mortgage loan origination requirements; prevent circumvention or evasion thereof; or facilitate compliance with TILA sections 129B and 129C. 15 U.S.C. 1639c(b)(3)(B)(i). In addition, TILA section 129C(b)(3)(A) requires the Bureau to prescribe regulations to carry out such purposes. 15 U.S.C. 1639c(b)(3)(A).
TILA section 105(a) grants the Bureau authority to make adjustments and exceptions to the requirements of TILA for all transactions subject to TILA, except with respect to the substantive provisions of TILA section 129 that apply to high-cost mortgages. With respect to the high-cost mortgage provisions of TILA section 129, TILA section 129(p), 15 U.S.C. 1639(p), as amended by the Dodd-Frank Act, grants the Bureau authority to create exemptions to the restrictions on high-cost mortgages and to expand the protections that apply to high-cost mortgages. Under TILA section 129(p)(1), the Bureau may exempt specific mortgage products or categories from any or all of the prohibitions specified in TILA section 129(c) through (i), if the Bureau finds that the exemption is in the interest of the borrowing public and will apply only to products that maintain and strengthen homeownership and equity protections. Among these referenced provisions of TILA is section 129(e), the prohibition on balloon payments for high-cost mortgages.
Section 1022(b)(1) of the Dodd-Frank Act authorizes the Bureau to prescribe rules “as may be necessary or appropriate to enable the Bureau to administer and carry out the purposes and objectives of the Federal consumer financial laws, and to prevent evasions thereof.” 12 U.S.C. 5512(b)(1). TILA and title X and certain enumerated subtitles and provisions of title XIV of the Dodd-Frank Act are Federal consumer financial laws. Accordingly, the Bureau is exercising its authority under Dodd-Frank Act section 1022(b) to issue rules that carry out the purposes and objectives of TILA, title X of the Dodd-Frank Act, and certain enumerated subtitles and provisions of title XIV of the Dodd-Frank Act, and to prevent evasion of those laws.
Section 1026.35(b)(2)(iii) currently provides that an escrow account need not be established for a higher-priced mortgage loan by small creditors who operate predominantly in rural or underserved areas if four conditions identified in § 1026.35(b)(2)(iii)(A) through (D) are satisfied at the time of consummation.
Because the predominantly-rural-or-underserved test and the origination and asset limits of § 1026.35(b)(2)(iii) are cross-referenced in the Bureau's January 2013 ATR Final Rule and its 2013 HOEPA Final Rule, and amendments to those rules, they also affect eligibility for special provisions and exemptions provided in those rules, including the following:
• A qualified mortgage definition for certain loans made and held in portfolio (small creditor portfolio loans), by small creditors regardless of whether they operate predominantly in rural or underserved areas. These loans are not subject to the 43 percent debt-to-income ratio limit (or to “appendix Q” requirements in determining the debt and income of consumers) that applies to general qualified mortgage loans under § 1026.43(e)(2) (§ 1026.43(e)(5)). A first-lien qualified mortgage under this category also provides a safe harbor from ability-to-repay claims, if the mortgage's annual percentage rate (APR) does not exceed the applicable Average Prime Offer Rate (APOR) by 3.5 or more percentage points. In contrast, general qualified mortgage loans under § 1026.43(e)(2) provide safe harbors if their APRs do not exceed the applicable APOR by 1.5 or more percentage points.
• Two qualified mortgage definitions for small creditors making certain balloon-payment loans. One is a permanent definition for small creditors operating predominantly in rural or underserved areas. The other is a temporary definition for small creditors who do not operate predominantly in such areas. These definitions provide an exception from the limitation on balloon-payment features on general qualified mortgage loans (§ 1026.43(e)(6) and (f)).
• An exception from the prohibition on balloon-payment features for certain high-cost mortgages (§ 1026.32(d)(1)(ii)(C))—also on a permanent basis for small creditors operating predominantly in rural or underserved areas and a temporary basis for small creditors who do not operate predominantly in such areas.
The Bureau adopted these special provisions and exemptions for small creditors because of the important role that small creditors play in providing mortgage credit to consumers. The Bureau believes that many small creditors use a lending model based on maintaining ongoing relationships with their customers and often limit their lending activities to a single community. They therefore may have a more comprehensive understanding of the financial circumstances of their customers and of the economic and other circumstances of that community.
As discussed in detail below, the Bureau is adopting § 1026.35(b)(2)(iii)(A) substantially as proposed, with certain minor changes to enhance clarity. Accordingly, this final rule restores the one-year lookback period for determining whether the creditor is operating predominantly in rural or underserved areas as originally adopted by the January 2013 Escrows Final Rule. This final rule also adopts the proposed grace period that allows a creditor making a higher-priced mortgage loan based on an application received before April 1 to rely on its transactions from either the preceding calendar year or the next-to-last calendar year to meet the condition in § 1026.35(b)(2)(iii)(A).
The current test under § 1026.35(b)(2)(iii)(A) for determining whether a creditor operates predominantly in rural or underserved areas is that, during any of the three preceding calendar years, the creditor extended more than 50 percent of its total first-lien covered transactions, as defined by § 1026.43(b)(1),
The Bureau also proposed conforming and technical changes to the rule and commentary. Proposed comment 35(b)(2)(iii)–1.i was amended for consistency with the changes that the Bureau proposed to the regulation text in §§ 1026.35(b)(2)(iii)(A) and 1026.35(b)(2)(iv)(A), and to provide guidance on the one-year lookback and grace periods. The Bureau also proposed to remove from comment 35(b)(2)(iii)–1.i all discussion of the lists that the
The Bureau invited comment on whether it should eliminate the three-year lookback period as proposed and whether it is appropriate to rely on the preceding calendar year in determining as a general matter whether the more than 50 percent test is met. The Bureau also sought feedback on whether it should provide a grace period to creditors that meet this test in one calendar year but fail to do so in the next calendar year and, if so, whether such a grace period should apply to all applications received before April 1 as proposed.
For the reasons discussed below, the Bureau is adopting § 1026.35(b)(2)(iii)(A) and the accompanying commentary as proposed, with minor technical revisions.
The Bureau received comments from national and state associations of credit unions, a national association of community banks, and state associations of banks on the proposal to use the preceding calendar year, rather than any of the three preceding calendar years, as the relevant time period for assessing whether the more than 50 percent test is satisfied and on the proposed April 1 grace period. No comments were received on the related proposed changes to the commentary.
Most of the commenters on the proposed lookback provision recommended that the Bureau maintain the three-year lookback. A national association of credit unions noted many credit unions develop their forward-looking strategies with a two- or three-year outlook and was concerned that the proposal will curtail a credit union's ability to do such planning. For the same reason, this commenter suggested extending the effective date of this rulemaking to January 1, 2017 if the three-year lookback is replaced with a one-year period. A national association and a state association of banks both noted some of their members operate close to the 50 percent threshold and that a three-year lookback would prevent these lenders from abruptly halting their loan originations should they come close to approaching the loan threshold or otherwise become concerned that they may not meet the more than 50 percent test in a given year. The state banking association recommended a six-month grace period if the Bureau adopts the one-year lookback period to allow community banks to make necessary product and system adjustments and train staff. Other commenters noted generally that the three-year lookback would provide creditors greater flexibility than a one-year period would, but provided no specific details or examples.
The majority of commenters on the proposed Apri1 1 grace period supported that provision, although a few commenters recommended extending the grace period to six months, and in one case, to one year. The commenters recommending an extension of the grace period generally cited the need for additional time to adjust systems and train staff.
The Bureau is finalizing § 1026.35(b)(2)(iii)(A) and its accompanying commentary generally as proposed but with minor changes to provide greater clarity.
The Bureau considered comments requesting the continuation of the three-year lookback but has not adopted this approach in the final rule. As originally adopted in the January 2013 Escrows Final Rule, § 1026.35(b)(2)(iii)(A) considered only the preceding year and established a one-year lookback period. The Bureau instituted the three-year lookback period to stabilize the escrow exemption during the period from 2013 to 2015 while the definitions were under review. 78 FR 60382, 60416 (Oct. 1, 2013). This change guaranteed eligibility for a creditor that was eligible during 2013 with respect to operating predominantly in rural or underserved areas and met the other applicable criteria through 2015. Stability in this specific period was a particular concern because during the definitional review the first year-to-year transition in the “rural” definition for purposes of this exemption was to coincide with the shift in the United States Department of Agriculture's Economic Research Service's (USDA–ERS) county Urban Influence Code (UIC) designations that occur once every decade.
Once the definitional review period ends, the Bureau believes that using a three-year lookback period on a permanent basis would allow creditors to maintain eligibility even if their first-lien covered transactions do not meet the more than 50 percent test in most calendar years. That result would be contrary to the goal of identifying creditors that focus their activity in rural or underserved areas.
Although the three-year lookback period provides creditors with certainty that they will be eligible for the exemption at least two years into the future, the Bureau does not believe that such extended notice will be necessary once the revisions to the definitions are effective. As explained in the section-by-section analysis of § 1026.35(b)(2)(iv)(A), below, the areas that are rural under the definition would only change once or twice a decade.
The Bureau acknowledges that in some cases, a creditor could find out on or close to December 31st that it was not operating predominantly in rural or underserved areas during that calendar year. Such a creditor might have difficulty transitioning from balloon-payment loans to adjustable-rate mortgages and complying with the higher-priced mortgage loan escrow requirements by January 1 if eligibility for the special provisions and exemptions is based solely on transactions in the preceding calendar year. The Bureau therefore is adopting the proposed grace period that allows a creditor making a higher-priced mortgage loan based on an application received before April 1 to rely on its transactions from either the preceding calendar year or the next-to-last
A creditor that is otherwise eligible and that met the more than 50 percent test in calendar year one but fails to meet it in calendar year two remains eligible with respect to applications received before April 1 of calendar year three. The Bureau considered comments requesting longer grace periods of six months or one year, but the Bureau is adopting this provision as proposed. Most of the comments received favored the grace period as proposed, and the Bureau believes that a grace period of this nature facilitates the transition of creditors that no longer operate predominantly in rural or underserved areas and properly balances the importance of the substantive consumer protections provided by the higher-priced mortgage loan escrows requirement, the ability-to-repay requirement, and the high-cost mortgage requirements with concerns that have been raised regarding their potential impact on access to credit.
The Bureau is adopting § 1026.35(b)(2)(iii)(B) and the accompanying commentary, substantially as proposed, with certain technical changes and commentary additions to enhance clarity, as discussed in further detail below. Accordingly, this final rule raises the origination limit for small creditor status from 500 covered transactions secured by a first-lien originated by the creditor and its affiliates, to 2,000 such loans. The final rule also excludes originated loans held in portfolio by the creditor or its affiliates from the limit. The final rule also adds a grace period to allow an otherwise eligible creditor that exceeded the origination limit in the preceding calendar year (but not in the calendar year before the preceding year) to continue to operate as a small creditor with respect to transactions with applications received before April 1 of the current calendar year.
As part of its rulemakings implementing title XIV of the Dodd-Frank Act, in January 2013, the Bureau adopted an annual origination limit for small creditor status of 500 first-lien covered transactions in the preceding calendar year (§ 1026.35(b)(2)(iii)(B).
In adopting this limit the Bureau believed that an origination limit, in combination with other requirements, was the most accurate means of confining the special provisions and exemptions to the class of small creditors that focus primarily on a relationship-lending model, a business model the Bureau believed would best facilitate consumers' access to responsible, affordable credit.
However, prior to and after the effective dates of the 2013 Title XIV Final Rules, the Bureau heard repeated expressions of concern that the Bureau's definition of small creditor was under-inclusive and did not cover a significant number of institutions that met the rationale underlying the special provisions and exemptions. Accordingly, on May 6, 2014, in a Notice of Proposed Rulemaking with proposals addressing other elements of the 2013 Title XIV Final Rules, the Bureau also sought comment on the 500 total first-lien origination limit—including whether that limit is sufficient to serve the purposes of the small creditor designation.
In response to the Bureau's solicitation of comments regarding the origination limit in its May 6, 2014 proposal, industry commenters, including national and state associations of banks, and national and state associations of credit unions, generally supported an increase in the 500 loan origination limit. Consumer groups generally did not support an increase, absent clear evidence that the current limit was significantly harming consumers. These consumer-group commenters asserted that evidence of consumer harm does not exist.
The Bureau's proposed rule reflected stakeholder feedback on the small creditor definition received during the period since the issuance of its 2013 Title XIV Final Rules. Specifically, the Bureau proposed to raise the origination limit in § 1026.35(b)(2)(iii)(B) from 500 covered transactions secured by a first-lien originated by the creditor and its affiliates to 2,000 such loans. The Bureau also proposed to exclude loans held in portfolio by the creditor or its affiliates from the limit, so that the limit would only apply to loans that were sold, assigned, or otherwise transferred by the creditor or its affiliates to another person, or subject to a commitment to be acquired by another person. The Bureau also proposed to add a grace period from calendar year to calendar year to allow an otherwise eligible creditor that exceeded the origination limit in the preceding calendar year to continue to operate as a small creditor with respect to transactions with applications received before April 1 of the current calendar year if the creditor had not exceeded it in the calendar year before the preceding calendar year.
Proposed comment 35(b)(2)(iii)–1.ii made clear that a loan transferred by a creditor to its affiliate is a loan not retained in portfolio (it is a loan transferred to “another person”) and therefore is counted toward the 2,000 origination limit. The proposed comment also explained and added examples on applying the grace period to the origination limit.
In issuing the proposed rule, the Bureau stated its belief that an adjustment of the current origination limit as proposed, given feedback received on the origination limit up to that point, is justified. The Bureau stated that small creditors serve a particularly critical function for consumers in rural and underserved areas, especially when these creditors make portfolio loans for which there may be no secondary market. At the same time, the Bureau recognized that an expansion of the origination limit could undermine the Bureau's title XIV regulatory protections. The Bureau stated that it wanted to ensure that the origination limit is not set at a level that will allow larger creditors to take advantage of small-creditor status to avoid important regulatory requirements that protect consumers—regulatory requirements that those larger creditors, unlike many smaller creditors, have the capacity to implement effectively.
For the reasons discussed below, the Bureau is adopting § 1026.35(b)(2)(iii)(B), and the accompanying commentary, as proposed, with several technical revisions, and commentary additions and clarifications.
Comments on the Bureau's proposal to raise the origination limit were divided between industry stakeholders and consumer groups. Industry commenters generally expressed appreciation and support for the proposed rule changes, while consumer representatives and organizations opposed or expressed concern with the proposals.
While national and state credit union trade association commenters were supportive of the Bureau's proposal to raise the limit, a number questioned how the Bureau arrived at 2,000 loans for the limit, and suggested the Bureau analyze increasing the proposed limit. One national association of credit unions, for example, encouraged the Bureau to provide impact analyses that demonstrate how communities, consumers, and creditors would be affected if the limit were raised to 2,500, 3,000, 3,500, or 4,000, as well as the proposed threshold of 2,000, so that stakeholders and the Bureau would have more informed comments regarding what the new limit should be. Some state associations of credit unions suggested that the Bureau raise the limit to 5,000 loans, stating that a threshold at that level is more in line with the reality of credit unions that continue to maintain the virtues of a small creditor, including an elevated level of service and personal attention to borrowers.
Some state associations of credit unions suggested that the Bureau allow institutions with default rates of, for example, less than 1 percent of covered transactions in the previous calendar year to make up to 4,000 mortgage loans per year and still qualify for the small creditor exemption.
Consumer groups opposed or expressed concern regarding the proposed increase in the origination limit. Some cited a lack of an evidentiary basis to support the expansion of the origination limit, asserting that the Bureau did not provide any evidence that the current limit unreasonably constrains small creditors.
Several consumer organizations in a joint comment expressed concern about the expansion of the origination limit to 2,000 loans, with a specific focus on past practices and lack of regulatory oversight with regard to non-depository institutions. They stated that, in the past, the absence of oversight by federal financial regulators, when combined with inconsistent or weaker state oversight, created an environment where non-depository institutions, in particular, had improper incentives to push consumers into mortgage loans with problematic features. The joint commenters encouraged the Bureau to limit the increase of the origination limit to depository institutions exclusively.
An organization of state bank supervisors stated that the Bureau's proposal correctly acknowledges that portfolio lenders have strong incentives to consider a borrower's ability to repay a loan. It also stated that raising the small creditor origination limit from 500 to 2,000 loans, and more importantly, excluding loans originated and held in portfolio from that threshold, will provide effective and significant regulatory relief for community bank portfolio lenders.
A coalition of mid-size banks stated that this aspect of the proposal rests on the understanding that a creditor retains the risk associated with its portfolio loans and therefore has a natural incentive to underwrite such loans deliberately and under conservative standards. It stated further that this incentive is magnified for small and mid-size banks, which have substantially lower capital cushions than their larger counterparts to absorb losses in connection with default. A state association of banks stated that the Bureau is moving in the “right direction” with many of its proposals, but recommended that the Bureau exclude from the origination limit loans transferred by a creditor to a wholly-owned subsidiary.
The Bureau has considered those industry comments that suggested raising the limit above 2,000 loans, or
The Bureau is finalizing the origination limit as proposed, applying equally to depository institutions and non-depository institutions, as does the current rule. Excluding non-depository institutions from the changes to the origination limit, as suggested by some consumer groups, would require the Bureau to establish, and oversee, two different regulatory schemes for banks and non-banks. This introduction of complexity into the determination of small creditor status would subject similar regulated entities to different regulatory requirements, possibly creating creditor confusion regarding compliance, resulting in increased burden and compliance costs for such creditors. Moreover, the Dodd-Frank Act sets out as one of the objectives for the Bureau enforcing federal consumer financial law consistently without regard to charter type.
The Bureau believes the final rule provides a bright-line approach for determining what is included in the 2,000-origination limit. The Bureau also believes that the bright-line nature of this rule would be undermined by the commenter's recommendation described above that the Bureau not count toward the limit loans transferred by the creditor to its wholly-owned subsidiary. A transfer of a loan by a creditor to a subsidiary, or other affiliate, is not a loan held in the creditor's portfolio. Rather, it is a loan that is sold, assigned, or otherwise transferred by the creditor to another legal entity in this particular situation (
This final rule is also making several additional technical and clarifying language changes to § 1026.35(b)(2)(iii)(B) from the proposed rule, for example, changing the phrase “originated . . . covered transactions” to “extended . . . covered transactions,” to make the language of that section consistent with the terminology generally used in Regulation Z. In addition, this final rule makes several technical and clarifying amendments to comment 35(b)(2)(iii)–1.ii, including, for example, technical changes for purposes of consistency between the regulatory text at § 1026.35(b)(2)(iii)(B) and the commentary, and additional guidance regarding the definition of “affiliate.” The comment states that, for purposes of § 1026.35(b)(2)(iii)(B), “affiliate” has the same meaning as in § 1026.32(b)(5), which defines “affiliate” as “any company that controls, is controlled by or is under common control with another company, as set forth in the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The Bureau believes that this final rule sets the origination limit in an effective and responsible way. As discussed, the Bureau's intent in setting the origination limit is to include small creditors that can provide responsible, affordable credit to consumers and enable consumers, particularly those in rural and underserved areas, to access creditors with a lending model, operations, and products that may meet their particular needs. As further discussed in the section 1022(b) analysis in part VII below, the Bureau estimates that expanding the origination limit to 2,000 originations, and not including portfolio loans in that originations count, will increase the number of small creditors by 700, from approximately 9,700 to approximately 10,400. The Bureau believes that this increase will include creditors with the size and responsible lending models that fit the purpose of small-creditor status that the Bureau intends.
As discussed in further detail below, the Bureau is adopting § 1026.35(b)(2)(iii)(C) and the accompanying commentary, substantially as proposed, with certain technical changes and commentary additions to enhance clarity. Accordingly, this final rule includes in the calculation of the asset limit for small-creditor status the assets of the creditor's affiliates that regularly extended covered transactions secured by first liens during the applicable period. The final rule also adds a grace
Currently, under § 1026.35(b)(2)(iii)(C), eligibility for small creditor status is limited to creditors with less than $2 billion in assets (or other current yearly adjusted limit) at the end of the preceding calendar year.
The Bureau did not propose a change to the current $2 billion asset limit in § 1026.35(b)(2)(iii)(C). The Bureau, however, did propose to amend § 1026.35(b)(2)(iii)(C) to include in the calculation of the $2 billion asset limit the assets of the creditor's affiliates that originate covered transactions secured by a first lien. Proposed comment 35(b)(2)(iii)–1.iii provided that, for purposes of § 1026.35(b)(2)(iii)(C), in addition to the creditor's assets, only the assets of a creditor's “affiliate” as defined in § 1026.32(b)(5) that originates covered transactions as defined by § 1026.43(b)(1) secured by a first lien would be counted toward the asset limit.
In proposing this change, the Bureau noted that counting both the creditor's assets and the assets of the creditor's affiliates that originate mortgage loans would make the tests for determining small-creditor status consistent as between the asset limit in § 1026.35(b)(2)(iii)(C) and the origination limit in § 1026.35(b)(2)(iii)(B), which currently includes the originations of the creditor's affiliates in determining whether the limit has been exceeded. The Bureau stated that this added consistency between the two tests could facilitate creditor compliance with the special provisions and exemptions for small creditors, including those that operate predominantly in rural or underserved areas.
The Bureau also stated its belief, that given the proposed change to the origination limit to exclude the creditor's and its affiliate's portfolio loans from counting toward that limit, the proposed change to the asset limit is necessary to ensure that small-creditor status does not become a means for larger creditors, through the development of affiliate relationships, to evade important consumer protections.
The Bureau stated that it was interested in receiving comments on the proposed change's potential impact on creditors and access to credit. The Bureau also sought comment on the potential for larger creditors to obtain small-creditor status without this change and the possible impact on consumers.
The Bureau also proposed to add a grace period to the $2 billion asset limit in § 1026.35(b)(2)(iii)(C), similar to the grace period proposed by the Bureau for the origination limit. This proposed grace period allowed an otherwise eligible creditor that exceeded the asset limit in the preceding calendar year to continue to operate as a small creditor with respect to transactions with applications received before April 1 of the current calendar year. This proposed grace period was available to creditors that exceeded the asset limit in the preceding calendar year but had not exceeded it in the calendar year before the preceding calendar year. The Bureau stated that it proposed the grace period to provide consistency in requirements for creditors seeking and maintaining small-creditor status.
Proposed comment 35(b)(2)(iii)–1.iii explained that creditors meet the asset limit during calendar year 2016 if the creditors' total assets (which include, in addition to the creditors' assets, the assets of the creditors' affiliates that originate mortgage loans) are under the applicable asset limit on December 31, 2015. The proposed comment explained further that creditors that did not satisfy the applicable asset limit on December 31, 2015 satisfy the asset limit during 2016 if the application for the loan was received before April 1, 2016 and the creditors had total assets under the applicable asset limit on December 31, 2014. The proposed comment also added the threshold for calendar year 2015 to the 2013 and 2014 asset limits currently listed in the comment.
For the reasons discussed below, the Bureau is adopting § 1026.35(b)(2)(iii)(C), and the accompanying commentary as proposed, with several technical revisions, and commentary additions and clarifications.
Industry commenters opposed the change. Some stated that if the Bureau adopted the proposal, it needed to increase the asset limit correspondingly. Several commenters, including a national association of banks, recommended an increase in the asset limit to $10 billion. The proposal, these commenters asserted, effectively lowers the threshold limit for financial institutions with affiliates.
Credit union commenters were concerned with the impact of the proposal on the eligibility of credit unions for small creditor status. A particular concern was regarding those credit unions with affiliated credit union service organizations (CUSOs), with some credit union commenters suggesting that the Bureau exclude CUSOs from treatment as “affiliates” for purposes of the asset limit. In support of different treatment for CUSOs, a credit union trade association commenter distinguished CUSOs from other affiliates, stating that they are limited in scope and purpose. This commenter alternatively requested clarification on how to calculate the asset limit in the case of a CUSO that is owned by multiple credit unions, if the Bureau adopted the proposal. Some credit unions pointed to the Bank Holding Company Act, and the reference to that Act in the Regulation Z definition of “affiliate” that was cited in the proposed rule, as a basis for excluding CUSOs from the asset limit calculation, stating that the Act does not apply to credit unions.
A state association of banks recommended that the Bureau exclude from counting toward the asset limit loans originated by a creditor and/or its affiliates and held in portfolio—including loans held in portfolio by a wholly-owned subsidiary of either. This commenter stated that a “community-based institution should not lose `small creditor' status simply because it is successful with its portfolio-based
Accordingly, the Bureau is finalizing § 1026.35(b)(2)(iii)(C) as proposed but with several technical revisions. The final rule changes from the proposed rule the phrase “the creditor and its affiliates that originate covered transactions” to “the creditor and its affiliates that regularly extended covered transactions” in § 1026.35(b)(2)(iii)(C) to make the language of that section more consistent with the terminology generally used in Regulation Z. This change also provides greater clarity that, as stated in the proposed rule,
To provide additional guidance, the final rule also makes several additions and clarifications to comment 35(b)(2)(iii)–1.iii. Comment 35(b)(2)(iii)–1.iii.A states that only the assets of a creditor's “affiliate” (as defined by § 1026.32(b)(5)) that regularly extended covered transactions (as defined by § 1026.43(b)(1)) secured by first liens, are counted toward the applicable annual asset threshold. Comment 35(b)(2)(iii)–1.iii.A also refers to comment 35(b)(2)(iii)–1.ii.C, which discusses the definition of affiliate under 1026.32(b)(5) and the definition of control under the Bank Holding Company Act referenced in that section. Comment 35(b)(2)(iii)–1.iii.B states that only the assets of creditors' affiliates that regularly extended first-lien covered transactions during the applicable period for determining whether the creditor met the asset limit are included in calculating the creditor's assets. Comment 35(b)(2)(iii)–1.iii.B then discusses the meaning of “regularly extended,” which is based on the number of times a person extends consumer credit for purposes of the definition of “creditor” in § 1026.2(a)(17), and provides examples on this point. Consistent with § 1026.2(a)(17)(v), because covered transactions are “transactions secured by a dwelling,” an affiliate “regularly extended” covered transactions if it extended more than five covered transactions in a calendar year. Also consistent with § 1026.2(a)(17)(v), because a covered transaction may be a high-cost mortgage subject to § 1026.32, an affiliate regularly extends covered transactions if, in any 12-month period, it extends more than one covered transaction that is subject to the requirements of § 1026.32 or one or more such transactions through a mortgage broker. Comment 35(b)(2)(iii)–1.iii.C states that if multiple creditors share ownership of a company that regularly extended first-lien covered transactions, the assets of the company count toward the asset limit for a co-owner creditor if the company is an “affiliate,” as defined in § 1026.32(b)(5), of the co-owner creditor. Comment 35(b)(2)(iii)–1.iii.C also states that if the co-owner creditor and the company are affiliates, the co-owner creditor counts all of the company's assets toward the asset limit, regardless of the co-owner creditor's ownership share. The comment also notes that because the co-owner and the company are mutual affiliates, the company also would count all of the co-owner's assets towards its own asset limit.
While credit unions in their comments expressed concern about the impact of the proposal on credit unions affiliated with CUSOs, under the proposal only the assets of affiliates that regularly extended covered transactions are counted toward the creditor's asset limit. As adopted under the Bureau's final rule, therefore, only the assets of CUSOs that meet the definition of affiliate in Regulation Z (meeting the “control” test under the Bank Holding Company Act) and that regularly extend covered transactions during the applicable period will be counted toward the asset limit. The Bureau is not excluding CUSOs from possible treatment as affiliates because it remains concerned that a credit union could, under the current asset limit calculation, enter into a relationship with a CUSO or CUSOs to create a large entity that would be eligible for the special provisions and exemptions accorded small creditor status. The Bureau also notes that § 1026.32(b)(5) and its definition of “affiliate” references the Bank Holding Company Act only for the purposes of how control is determined under that Act, which is applicable to the determination of affiliate under Regulation Z regardless of the applicability of the Act to credit unions.
As noted, the Bureau did not propose to change the current $2 billion asset limit. However, as discussed, some commenters suggested that the Bureau increase that limit to correspond with the Bureau's proposed inclusion of the assets of a creditor's affiliates in the asset limit calculation, with several commenters suggesting an increase to $10 billion. The Bureau established the current $2 billion asset limit based on its belief that an asset limit is important to preclude a very large creditor with relatively modest mortgage operations from taking advantage of provisions designed for much smaller creditors with much different characteristics and incentives and that lack the scale to make compliance less burdensome. The Bureau believes institutions that fall under the $2 billion asset limit are more likely to be engaged in relationship-based community lending than larger institutions, with such small entities having a more in-depth understanding of the economic and other circumstances of their customers and community. The Bureau believes that allowing entities of up to $10 billion in size to take advantage of the exemptions
The Bureau did not propose to exclude from the asset limit loans originated by a creditor or its affiliates and held in portfolio, or loans held in portfolio by a wholly-owned subsidiary of either. Given the final rule's exclusion of portfolio loans from the origination limit, also excluding portfolio loans from the asset limit could potentially allow a large creditor with significantly more than $2 billion in assets due to the size of its loan portfolio, or the size of its affiliate's loan portfolio, to take advantage of the special provisions and exemptions designed for smaller creditors. Such a change would run counter to the Bureau's intent in establishing an asset limit and the Bureau's intent to limit the ability of creditors who become large creditors through the development of affiliate relationships to circumvent consumer protections by obtaining small creditor status.
As discussed in detail below, the Bureau is adopting § 1026.35(b)(2)(iii)(D) substantially as proposed, with a minor change to enhance clarity. Accordingly, this final rule substitutes January 1, 2016 for January 1, 2014 where it appears in § 1026.35(b)(2)(iii)(D)(
In general, § 1026.35(b)(2)(iii)(D) prohibits any creditor from availing itself of the exemption from escrow requirements in § 1026.35(b)(2)(iii) if the creditor maintains escrow accounts for any extension of consumer credit secured by real property or a dwelling that it or its affiliate currently services. However, § 1026.35(b)(2)(iii)(D) currently also provides that a creditor may qualify for the exemption if such escrow accounts were established for first-lien higher-priced mortgage loans on or after April 1, 2010, and before January 1, 2014 or were established after consummation as an accommodation for distressed consumers.
The Bureau solicited comment on the Bureau's proposed amendments to § 1026.35(b)(2)(iii)(D)(
The Bureau is finalizing § 1026.35(b)(2)(iii)(D)(
The commenters on this subject, including a national association of credit unions and state associations of banks and credit unions, supported the provision to disregard escrow accounts that were maintained during a period a creditor was not exempt from the escrow requirement.
The Bureau has considered the comments received on this provision and is finalizing § 1026.35(b)(2)(iii)(D)(
The Bureau does not believe that creditors that maintain escrow accounts they were required to set up before the effective date of this rule should lose the exemption simply because they were required by applicable regulations to establish escrow accounts before January 1, 2016. As the Bureau discussed in the Supplementary Information to the January 2013 Escrows Final Rule and again in finalizing amendments to the January 2013 Escrows Final Rule made in the September 2013 Final Rule, the Bureau believes creditors should not be penalized for compliance with the current regulation.
A small number of commenters recommended additional exemption provisions, including exempting from the escrow requirement all loans held in portfolio if the APR does not exceed APOR by 3.5 percentage points or more. The Bureau notes, however, that the proposal did not address additional exemptions and thus such exemptions are outside the scope of this rulemaking.
As discussed in detail below, the Bureau is adopting § 1026.35(b)(2)(iv)(A) substantially as proposed, amending the current definition of “rural,” with certain minor changes to enhance clarity. Accordingly, this final rule adds census blocks that are not in an urban area as defined by the U.S. Census Bureau to the current county-based definition in
Section 1026.35(b)(2)(iv)(A) currently defines a county as “rural” during a calendar year if it is neither in a metropolitan statistical area (MSA) nor in a micropolitan statistical area that is adjacent to an MSA, as those terms are defined by the U.S. Office of Management and Budget and as they are applied under currently applicable UICs, established by the USDA–ERS. The current rule further provides that a creditor may rely as a safe harbor on the list of counties published by the Bureau to determine whether a county qualifies as “rural” for a particular calendar year. The Bureau proposed to expand the “rural” definition in § 1026.35(b)(2)(iv)(A) to capture additional areas classified as “rural” by the Census Bureau, without affecting the status of any counties that would be deemed rural under the current rule. For technical reasons, the Bureau also proposed to move the discussion of the safe harbor list of counties provided by the Bureau that is currently in § 1026.35(b)(2)(iv)(A) and comment 35(b)(2)(iv)(A)–1 to new § 1026.35(b)(2)(iv)(C) and proposed comment 35(b)(2)(iv)(A)–1.iii, which are discussed below.
The proposal added to the definition of “rural” those census blocks that are not designated as “urban” by the Census Bureau in the urban-rural classification it completes after each decennial census to the county-based definition in § 1026.35(b)(2)(iv)(A). To implement this change, proposed § 1026.35(b)(2)(iv)(A) provided that an area is rural during a calendar year if it is (1) a county that meets the Bureau's current rural definition, or (2) a census block that is not in an urban area, as defined by the Census Bureau using the latest decennial census of the United States.
The Bureau also proposed revisions to comment 35(b)(2)(iv)–1 that: (1) Conform to the changes made to § 1026.35(b)(2)(iv); (2) add a cross-reference to comment 35(b)(2)(iii)–1; and (3) make technical changes for clarity. The Bureau further proposed to update the example provided in comment 35(b)(2)(iv)–2.i to reflect the Bureau's proposal to add rural census blocks to the definition of rural area. Proposed comment 35(b)(2)(iv)–2.i explains that an area is considered “rural” for a given calendar year based on the most recent available UIC designations by the USDA–ERS and the most recent available delineations of urban areas by the Census Bureau that are available at the beginning of the calendar year. As the proposed comment noted, these designations and delineations are updated by the USDA–ERS and the Census Bureau respectively once every ten years. The comment provides an illustrative example.
The Bureau solicited comment on whether it should add a second prong to the rural definition based on the Census Bureau's urban-rural classification and, if so, whether it should make any modifications to the Census Bureau's classification in doing so. Although the Bureau proposed to maintain the current county-based test as part of the new definition, the Bureau also solicited comment on whether the counties included in the current definition should be expanded, contracted, eliminated, or maintained as is. The Bureau also requested feedback on any alternative approaches to defining “rural” areas in § 1026.35(b)(2)(iv)(A) that commenters believe might be preferable to the Bureau's proposal.
For the reasons discussed below, the Bureau is adopting § 1026.35(b)(2)(iv)(A) and the accompanying commentary as proposed, with minor technical revisions.
Creditor commenters, including national and state associations of banks and credit unions and individual banks and credit unions, as well as non-creditor commenters, including national associations of home builders, realtors, and banking supervisors, generally supported the expanded definition of “rural.” For example, a national banking association stated that the Census Bureau's urban-rural classification appeared to be the most suitable for the purposes and objectives of the regulations, and a regional association of credit unions referred to the proposed definition as a “common sense approach” that it urged the Bureau to adopt. Some of the commenters supporting the proposed change also noted the need to have an effective automated tool for determining whether a covered transaction is made in an area that is rural because of the difficulties inherent in considering millions of census blocks. These concerns are addressed below in the discussion of the Bureau's automated tool.
Other commenters, generally consumer groups, noted that the current definition has not been in place long enough for the Bureau to discern its effects and questioned whether data supported the proposed changes. These commenters recommended caution before adopting any changes because consumers may be harmed by a broader definition. They also recommended narrowly tailoring any changes to the definition to prevent non-rural lenders from taking advantage of the special provisions and exemptions. These commenters and a few others also argued that high-cost mortgages should not be eligible for qualified mortgage status under any circumstances.
A few commenters also recommended alternative definitions. A state association of banks and a state association of credit unions recommended only excluding “urbanized areas” of 50,000 or more from the definition of rural. A national organization representing banking supervisors and one representing real estate brokers and agents both recommended the Bureau establish an application process under which a person who lives or does business in a state may apply to have an area designated as a rural area. A national nonprofit organization that supports affordable housing efforts in rural areas noted that a reliance on Census Bureau classifications for rural areas may allow rural area determinations for lending activity that is actually suburban in nature, which may have the unintended consequence of diverting credit away from truly rural communities and consumers. This commenter recommended using a sub-county designation of rural and small-town areas which incorporates measures of housing density and commuting at the Census tract level.
The Bureau is finalizing § 1026.35(b)(2)(iv)(A) generally as proposed with minor changes in the associated commentary to provide greater clarity and consistency with other changes made in this final rule.
The definition of “rural” in this final rule maintains the bright-line, easy-to-apply county-based test from the current definition, while also bringing into the definition rural pockets within counties that are non-rural under the current rule.
The Bureau believes that use of the Census Bureau's classifications provides consistency, certainty, stability, and objectivity to the “rural” definition. The Census Bureau's classifications generally change only every ten years and, once established, provide a bright-line test that is not subject to discretionary judgments and manipulation, which could result under some commenters' more complex classification procedures, including those to establish an application process to have an area designated as a rural area. Used in conjunction with automated address search tools, as discussed more fully below, the Census Bureau's classifications allow the use of an easy-to-apply test, as originally provided under the county-based definition, to continue, thereby avoiding regulatory and administrative complexity.
As discussed below, the Bureau is adopting § 1026.35(b)(2)(iv)(B) and (C) and comments 35(b)(2)(iv)–1, 35(b)(2)(iv)–1.iii, and 35(b)(2)(iv)–2.ii substantially as proposed, with certain minor changes to enhance clarity. Accordingly, this final rule makes minor technical and conforming changes to the definition of “underserved” and the regulation text and commentary discussed below.
Section 1026.35(b)(2)(iv)(B) defines a county as “underserved” during a calendar year if, according to Home Mortgage Disclosure Act (HMDA) data for the preceding calendar year, no more than two creditors extended covered transactions, as defined in § 1026.43(b)(1), secured by a first lien, five or more times in the county. It further provides that a creditor may rely as a safe harbor on the list of rural or underserved counties published by the Bureau to determine whether a county qualifies as “underserved” for a particular calendar year.
For technical reasons, the Bureau proposed to move the discussion of the safe harbor county lists provided by the Bureau from § 1026.35(b)(2)(iv)(B) and comment 35(b)(2)(iv)–1 to § 1026.35(b)(2)(iv)(C) and comment 35(b)(2)(iv)–1.iii.A.
The Bureau did not receive comments regarding the proposed technical and conforming changes to § 1026.35(b)(2)(iv)(B), § 1026.35(b)(2)(iv)(C), comments 35(b)(2)(iv)–1, 35(b)(2)(iv)–2.ii, and 35(b)(2)(iv)–1.iii.A. Although the Bureau did not solicit comment regarding the definition of “underserved,” the Bureau received four comments suggesting the Bureau consider an alternative definition of “underserved.” These commenters suggested that the Bureau's definition of “underserved” is under-inclusive. These commenters recommended that the Bureau consider expanding or changing the meaning of “underserved” to include the consideration of socio-economic factors to determine underserved status. Specifically, they recommended that underserved areas include low- and moderate-income communities with limited credit options.
For the reasons discussed below the Bureau is not substantively changing the definition of “underserved” in this final rule. The Bureau is adopting substantially as proposed the technical and conforming changes to § 1026.35(b)(2)(iv)(B) and comments 35(b)(2)(iv)–1 and 35(b)(2)(iv)–2.ii. In addition, the Bureau is adopting substantially as proposed § 1026.35(b)(2)(iv)(C) and comment 35(b)(2)(iv)–1.iii.A.
As stated in the preamble to the proposed rule the current definition of “underserved” appropriately identifies areas where the withdrawal of a creditor from the market could leave no meaningful competition within that market. The designation of an area as “underserved” under the Bureau's rules is intended to identify communities that have few creditors and, thus, may be subject to access to credit issues. The Bureau's definition focuses on whether there is access to credit by looking at the number of creditors competing for mortgage business in an area. The economic-and demographic-based definitions suggested by commenters would introduce factors unrelated to competition for consumers' mortgage business.
The changes to the “rural” definition discussed above expand the term “rural or underserved” for purposes of the exemption to the escrow requirement for higher-priced mortgage loans in § 1026.35(b)(2)(iii), the allowance for balloon-payment qualified mortgages in § 1026.43(f), and the exemption from the balloon-payment prohibition on high-cost mortgages in § 1026.32(d)(1)(ii)(C). Because these provisions reference “underserved” only in the alternative with “rural” (“rural or underserved”), the Bureau believes that the expansion of the “rural” definition in this final rule addresses concerns that have been raised by commenters about the overall coverage of “rural or underserved.”
The Bureau also notes that it did not propose or seek comment on substantive revisions to the definition of “underserved,” and that such changes to that definition are outside the scope of this rulemaking.
The Bureau notes that comment 35(b)(2)(iv)–1.ii refers to several current HMDA provisions. The Bureau's HMDA rulemaking proposed to modify the referenced provisions.
As discussed in detail below, the Bureau is adopting the revisions related to the safe harbors § 1026.35(b)(2)(iv)(A) and (B) and § 1026.35(b)(2)(iv)(C)(
Section 1026.35(b)(2)(iv)(A) and (B) and comment 35(b)(2)(iv)–1 currently provide that a creditor may rely as a safe harbor on the list of counties published by the Bureau to determine whether a county qualifies as “rural” or “underserved” for a particular calendar year.
The Bureau proposed technical changes to the safe harbor provision relating to its county lists and also proposed to publish its county lists in the
Because the proposed changes to § 1026.35(b)(2)(iv) created the possibility that some counties would include both rural and non-rural areas, the Bureau also adjusted the discussion of the county lists in proposed comment 35(b)(2)(iv)–1.iii.A. to § 1026.35(b)(2)(iv)(C)(
To assist creditors in implementing the proposed “rural” definition, the Bureau proposed to develop and maintain on its Web site a tool that allows creditors to enter property addresses, both individually and in batches, to determine whether a property is located in a “rural or underserved” area for the relevant calendar years. The Bureau stated in the preamble to the proposed rule that it did not anticipate that the Bureau's automated tool would be available before the proposed effective date of the final rule, but it proposed that such a tool could provide a safe harbor if and when it becomes available.
Specifically, proposed § 1026.35(b)(2)(iv)(C)(
In the preamble to the proposed rule, the Bureau noted that, until any automated tool that the Bureau may develop becomes available, the Bureau anticipated that creditors would use resources provided by the Census Bureau to determine whether proposed § 1026.35(b)(2)(iv)(A)(
The Bureau solicited comment on whether Regulation Z should provide a safe harbor for automated tools of this nature. The Bureau also requested feedback relating to how it could make the automated tool it is considering developing most useful to industry and other stakeholders as they implement the rural and underserved definitions.
The Bureau did not receive comments regarding the publication of the county lists to the
The Bureau also received several comments about the current usability of the Census Bureau's automated address search tool. These commenters stated that the Census Bureau's automated address search tool is not efficient for business use. One commenter criticized the accuracy and usability of the Census Bureau's automated address search tool but did not provide examples of inaccuracies. The commenter suggested that the Bureau use housing density and commuter information on a census tract level to define rural areas because a scheme based on the census tract level is more accurate. The commenter believed the Bureau's proposed automated tool would only add to the complexity of the proposed census block scheme used to determine “rural” status.
The Bureau received one comment addressing the technical and conforming changes to the provisions discussing the safe harbors. The commenter was concerned about the change in language in § 1026.35(b)(2)(iv)(A) and (B) that states, “a creditor
The Bureau is adopting these provisions substantially as proposed, moving the discussion of the safe harbor lists in § 1026.35(b)(2)(iv)(A) and (B) and comment 35(b)(2)(iv)–1 to § 1026.35(b)(2)(iv)(C)(
The Bureau is clarifying new comment 35(b)(2)(iv)–1.iii.B and .C, to facilitate compliance. For both the Bureau's and the Census Bureau's automated tools, the comments state that a printout or electronic copy from an automated tool designating a particular property as being in a rural or underserved area may be used as “evidence of compliance” that a property is in a rural or underserved area for purposes of the Regulation Z record retention requirements in § 1026.25. The Bureau is also adding new comment 35(b)(2)(iv)–1.iii.D to clarify that a property is deemed to be in a rural or underserved area if that designation is provided by any one of the safe harbors, even if that designation is not provided by any of the other safe harbors, and regarding proof of compliance without the use of the enumerated safe harbor tools in § 1026.35(b)(2)(iv)(C)
The Bureau considered the comment regarding the availability of the Bureau's proposed automated tool by the proposed effective date, the concern that small institutions could not benefit from the expanded definition of “rural” because they do not have the capacity to determine the rural status of a property under the new definition of “rural,” and the suggestion that small institutions would not be willing to risk
The Bureau also considered the commenters concerns about the Census Bureau's automated address search tool and their requests that the Bureau make available its automated tool before the effective date of this rule. As noted above, the Bureau expects its automated tool will be ready by the effective date of this rule, which should address the usability concerns about the Census Bureau's automated address search tool. Creditors are encouraged to use the Bureau's automated tool, which will have a user-friendly interface and a batch upload feature. One commenter questioned the use of the Census Bureau's automated address search tool and suggested the Bureau adopt a rural classification scheme based on the use of census tracts and factors such as housing density and commuting. The Bureau believes such a system would increase administrative burden and complexity and reduce the objectivity achieved by a definition of rural based on census blocks. Accordingly, the Bureau is not adopting such a classification scheme.
Finally, one commenter believed the use of the word “shall” in § 1026.35(b)(2)(iv)(C) makes the use of the safe harbor tools mandatory. Creditors are not required to use the safe harbor tools. “Shall” is used in § 1026.35(b)(2)(iv)(C) to convey that a creditor who uses one or both of the tools receives a conclusive presumption of compliance with the Bureau's definition of “rural or underserved.” Using the word
The commentary to § 1026.36(a) discusses the meaning of the term “loan originator.” The Bureau did not propose changes to this commentary. However, the Bureau discovered a technical error in comment 36(a)–1.i.A.
As discussed in detail below, the Bureau is adopting comments 43(e)(5)–4 and 43(e)(5)–8 substantially as proposed, with certain minor changes to enhance clarity. Accordingly, this final rule makes minor technical and conforming changes to this commentary to § 1026.43(e)(5) discussed below.
Section 1026.43(e)(5) defines a category of qualified mortgages originated by certain small creditors that enjoy special treatment under the ability-to-repay rules. These mortgages must be originated by creditors that meet the origination limit and asset limit in § 1026.35(b)(2)(iii)(B) and (C), and the creditors must hold the loans in portfolio for at least three years after consummation, with certain exceptions. Such a small creditor portfolio loan can be a qualified mortgage even if the borrower's total debt-to-income ratio exceeds the 43 percent debt-to-income ratio limit that otherwise applies to general qualified mortgage loans under § 1026.43(e)(2). Qualified mortgages originated by small creditors are entitled to a safe harbor under the Bureau's ability-to-repay rule if the loan's APR does not exceed the applicable APOR by 3.5 or more percentage points—in contrast to the general qualified mortgage safe harbor which covers loans with APRs that do not exceed the applicable APOR by 1.5 or more percentage points.
The Bureau proposed several changes to the commentary to § 1026.43(e)(5) to conform to the Bureau's proposed changes to the origination limit and the asset limit in § 1026.35(b)(2)(iii)(B) and (C). Proposed comment 43(e)(5)–4 regarding creditor qualifications provides that to be eligible to make a qualified mortgage under § 1026.43(e)(5) the creditor has to satisfy the requirements of § 1026.35(b)(2)(iii)(B) and (C), including the Bureau's proposed changes to the origination limit and the asset limit, respectively, and the addition of the grace periods. The Bureau proposed to revise comment 43(e)(5)–8, regarding the transfer of a qualified mortgage to another qualifying creditor prior to three years after consummation, to conform to the proposed origination limit and asset limit in § 1026.35(b)(2)(iii)(B) and (C).
The Bureau did not receive comments regarding the conforming changes to comments 43(e)(5)–4 and 43(e)(5)–8. The Bureau is finalizing as proposed, with minor technical revisions to provide greater clarity, comments 43(e)(5)–4 and 43(e)(5)–8.
As discussed in detail below, the Bureau is adopting § 1026.43(e)(6)(ii) as proposed. Accordingly, this final rule extends the temporary balloon-payment qualified mortgage provision to apply to covered transactions for which applications are received before April 1, 2016.
Section 1026.43(e)(6) provides for a temporary balloon-payment qualified mortgage that requires all of the same criteria to be satisfied as the balloon-payment qualified mortgage definition in § 1026.43(f) except the requirement that the creditor extend more than 50 percent of its total first-lien covered transactions in counties that are “rural” or “underserved.” Pursuant to § 1026.43(e)(6)(ii), this temporary provision currently applies only to covered transactions consummated on or before January 10, 2016 (the sunset date). The Bureau proposed to change § 1026.43(e)(6)(ii) to provide that the temporary provision applies to covered transactions for which the application was received before April 1, 2016. The
Creditors, including national and state banking associations, individual banks, and national and state associations of credit unions, generally appreciated the proposed extension to cover applications received before April 1, 2016. However, these commenters recommended that either the provision should be extended indefinitely or, if not made permanent, extended for a longer period than proposed. Suggested extensions ranged from until the Bureau's automated tool is operational to as much as two additional years.
A comment from a state association of credit unions stated this provision should be extended indefinitely until such time as the Bureau has fully studied the benefits that loans with balloon payments provide to consumers and the impact on consumers if they were unable to obtain this type of loan. A national association of banks recommended a one-year extension to allow further study of the issue, and individual banks and credit unions stated a one-year extension would help them transition from balloon loans to adjustable-rate mortgage lending programs. A national banking organization and several state banking associations urged that the sunset be delayed until banks can access an official automated tool to identify rural areas, because without such an automated tool many small institutions would be incapable of ensuring compliance with the definitions, and may curtail or eliminate consumer mortgage financing.
The Bureau has considered the comments submitted on this provision and is finalizing § 1026.43(e)(6)(ii) as proposed. As stated in the May 2013 ATR Final Rule, the Bureau established a temporary provision because “the Bureau believes it is appropriate to use the two-year transition period to consider whether it can develop more accurate or precise definitions of rural and underserved. However, the Bureau believes that Congress made a deliberate policy choice in the Dodd-Frank Act not to extend qualified mortgage status to balloon-payment products outside of such [rural] areas.” 78 FR 35429, 35490 (June 12, 2013). The rule as amended here will permit creditors to continue to make balloon-payment qualified mortgages beyond April 1, 2016 as long as the application for the transaction is received before that date, and provides additional time beyond the original and expected sunset date for creditors to make necessary adjustments. With respect to the commenters that recommended an extension until an automated tool is available, as discussed above, the Bureau expects to have such an automated tool in place and operational upon the effective date of this final rule.
As discussed below, the Bureau is adopting comments 43(f)(1)(vi)–1, 43(f)(1)(vi)–1.i.A and .B, and 43(f)(2)(ii)–1 substantially as proposed, with certain minor changes to enhance clarity. Accordingly, this final rule makes minor technical and conforming changes to the commentary discussed below.
Section 1026.43(f)(1) provides an exemption to the general prohibition on qualified mortgages having balloon-payment features under § 1026.43(e)(2)(C) if the creditor satisfies the requirements stated in § 1026.35(b)(2)(iii)(A), (B), and (C) and other criteria are met. Pursuant to § 1026.43(f)(2), a qualified mortgage made under this section (a “balloon-payment qualified mortgage”) immediately loses its qualified mortgage status upon transfer in the first three years after consummation, with certain exceptions. The Bureau proposed to revise comments 43(f)(1)(vi)–1 and 43(f)(2)(ii)–1 to reflect the proposed revisions that are described in the section-by-section analysis of § 1026.35 above, including the new grace periods and expanded tests that the Bureau proposed in § 1026.35(b)(2)(iii)(A), (B), and (C), the broader rural definition that the Bureau proposed in § 1026.35(b)(2)(iv)(A), and the safe harbor provisions that the Bureau proposed in § 1026.35(b)(2)(iv)(C). Proposed comment 43(f)(1)(vi)–1.i.A and .B also included updated examples to reflect these changes in the regulation text.
In lieu of listing out the asset limits for every year in comment 43(f)(1)(vi)–1.iii, as the asset limit is adjusted for inflation each year, the Bureau also proposed to include a cross-reference in that comment indicating that the Bureau publishes notice of the new asset limit each year by amending comment 35(b)(2)(iii)–1.iii. The Bureau also proposed technical changes to comments 43(f)(1)(vi)–1, 43(f)(2)–2, and 43(f)(2)(ii)–1.
The Bureau did not receive comments that addressed the proposed revisions to comments 43(f)(1)(vi)–1, 43(f)(2)(ii)–1 and proposed comment 43(f)(1)(vi)–1.i.A and .B. The Bureau is finalizing as proposed, with minor technical revisions to provide greater clarity, the aforementioned comments.
As discussed in detail below, the Bureau is adopting the effective date for this final rule as proposed. The amendments in this final rule are effective January 1, 2016.
The Bureau proposed that all of the changes in its proposed rule take effect on January 1, 2016. Specifically, the Bureau proposed that its proposed amendments to § 1026.35(b)(2)(iii)(A), (B), (C), and (D) and its commentary, to § 1026.35(b)(2)(iv)(A), (B), and (C) and its commentary, to § 1026.43(e)(6), and to the commentary to §§ 1026.43(e)(5) and 1026.43(f)(1) and (f)(2), take effect for covered transactions consummated on or after January 1, 2016. The Bureau stated that it believed that this proposed effective date provided a date that is consistent with the end of the calendar year determinations required to be made with regard to the applicability of the special provisions and exemptions that apply to small creditors under the Bureau's regulations, as amended by the Bureau's proposal, and would therefore
A community bank trade association commenter and several credit union commenters recommended that the final rule provide an earlier optional effective date—specifically, on publication of the final rule—so that banks eligible for small creditor and small creditor rural status under the expanded definitions in the rule could take earlier advantage of the special provisions and exemptions that would become available to them. One commenter suggested that, in addition to its suggestion for an optional effective date on publication, the mandatory compliance date for purposes of compliance with the final rule changes should be January 1, 2016. It stated that mandatory compliance should not be earlier for any banks that currently satisfy the requirements for small creditor status, but may not after the final rule takes effect.
One state banking association commenter suggested that the Bureau delay the effective date of the rule until the Bureau's proposed automated tool to assist creditors in determining whether a property securing a mortgage is in a rural or underserved area is available. This commenter asserted that identifying “rural” areas under the Bureau's proposed definition of “rural” is difficult for small institutions and that it presents a compliance risk that these institutions may not be willing to take.
After considering the comments received on the effective date, the Bureau is finalizing the rule as proposed, with the amendments in the final rule taking effect for covered transactions consummated on or after January 1, 2016. The increased origination limit and the expanded definition of rural in this final rule, for example, apply only to covered transactions consummated on or after that date. The Bureau continues to believe that a January 1, 2016 effective date is the appropriate effective date for the final rule changes as it is consistent with the end of the calendar year determinations required to be made in order to determine a creditor's eligibility for small creditor and small creditor rural or underserved (“small rural creditor”) status and for the April 1 grace period. The January 1, 2016 effective date will therefore make determinations of small creditor and small rural creditor status easier going forward for creditors. It should also facilitate supervision of regulated entities for purposes of determination of compliance with the Bureau's rules,
An optional and mandatory effective date for the final rule changes, as suggested by some commenters, may create implementation and supervisory compliance oversight complications for the Bureau and other federal regulatory agencies—complications that may not be justified by any advantages that may be obtained by creditors seeking to operate as small or small rural creditors for the few remaining months of 2015. The Bureau believes that the January 1, 2016 effective date provides a bright line approach that will facilitate creditor compliance and avoid complexity in regulatory oversight.
The commenter seeking a delay in the effective date of the rule until the Bureau's automated tool is available may have been based on the Bureau's statement in the proposed rule that it did not expect the proposed automated tool to be available by the effective date of the final rule. The Bureau now believes however that its automated tool will be available by the effective date of the final rule, which should address the concerns of this commenter.
In developing the final rule, the Bureau has considered potential benefits, costs, and impacts.
As discussed in greater detail elsewhere throughout this Supplementary Information, the Bureau finalizes several amendments to the Bureau's Regulation Z and official interpretations relating to escrow requirements for higher-priced mortgage loans under the Bureau's January 2013 Escrows Final Rule and ability-to-repay/qualified mortgage requirements under the Bureau's January 2013 ATR Final Rule and May 2013 ATR Final Rule. Since publication of the 2013 Title XIV Final Rules, the Bureau has received extensive feedback on the definitions of “small creditor” and “rural and undeserved areas” with many commenters criticizing the Bureau for defining “rural” and “underserved” too narrowly and urging the Bureau to consider alternative definitions. This final rule reflects feedback from stakeholders regarding the Bureau's definitions of small creditor and rural and underserved areas as those definitions relate to special provisions and certain exemptions provided to small creditors under the Bureau's aforementioned rules.
The discussion below considers the benefits, costs, and impacts of the following key provisions of the final rule (final provisions):
• Raising the loan origination limit for determining eligibility for small-creditor status;
• An expansion of the definition of “rural area” to include (1) a county that meets the current definition of rural county or (2) a census block that is not in an urban area as defined by the Census Bureau; and
• An extension of the temporary two-year transition period that allows certain small creditors to make balloon-payment qualified mortgages and balloon-payment high cost mortgages regardless of whether they operate predominantly in rural or underserved areas.
With respect to these provisions, the discussion considers costs and benefits to consumers and costs and benefits to covered persons. The discussion also addresses certain alternative provisions that were considered by the Bureau in the development of the proposed and of the final rule.
The Bureau has chosen to evaluate the benefits, costs, and impacts of the final rule against the current state of the world.
The Bureau has relied on a variety of data sources to consider the potential benefits, costs and impacts of the final provisions, including the public comment record of various Board and Bureau rules.
The primary source of data used in this analysis is 2013 data collected under HMDA. The empirical analysis also uses data from the 4th quarter 2013 bank and thrift Call Reports,
Especially in light of some of the comments received by the Bureau that were discussed in the section-by-section analysis, it is worth emphasizing that the Bureau analyzes data from all creditors, both the ones that report under HMDA and the ones that do not, with the exception of non-depository institutions that do not report under HMDA. For HMDA reporters, the Bureau uses the data reported. For HMDA non-reporters, the Bureau uses projections based on the match of the Call Report data with HMDA.
The final provisions expand the number of institutions that are eligible to originate certain types of qualified mortgages and to take advantage of certain special provisions under the January 2013 ATR Final Rule, the May 2013 ATR Final Rule, the January 2013 Escrows Final Rule, and the 2013 HOEPA Final Rule.
The second set of special provisions applies only to small creditors that operate predominantly in rural or underserved areas (rural small creditors). Rural small creditors can originate qualified mortgages with balloon-payment features, as long as these loans are kept in portfolio (rural qualified mortgage balloon-payment special provision) and other requirements are met.
Among other things, the final provisions expand the number of small creditors by changing the origination limit on the number of loans that a small creditor could have originated annually together with its affiliates from no more than 500 to no more than 2,000. The final rule's origination limit also counts only loans not held in portfolio by the creditor and its affiliates that originate covered transactions secured by first liens toward that limit. Similar to the currently effective provisions, the final provisions include a requirement that creditors have less than $2 billion in total assets (adjusted annually), but under the final rule this threshold applies to the creditor's assets combined with the assets of the creditor's affiliates that originate covered transactions secured by first liens rather than just the creditor's own assets.
Based on 2013 data, the Bureau estimates that the number of small creditors will increase from approximately 9,700 to approximately 10,400 (out of the 11,150 creditors in the United States that the Bureau estimates are engaged in mortgage lending). In 2013, the approximately 700 additional creditors originated about 720,000 loans (roughly 10 percent of the overall residential mortgage market), of which about 175,000 were kept in portfolio. Of these 175,000 portfolio loans, the Bureau estimates that about 15,000 were portfolio higher-priced mortgage loans and 88 percent of those had an APR between 1.5 and 3.5 percentage points over APOR.
The final provisions also expand the areas deemed rural for the purposes of
Consumer benefit from the final provisions is a potential expansion in access to credit. Access to credit concerns meant to be addressed by the rural small creditor provisions and the small creditor provisions are interrelated, thus the Bureau discusses them jointly in this subsection.
In general, most consumer protection regulations have two effects on consumers. Regulations restrict particular practices, or require firms to provide additional services, in order to make consumers better off. However, restricting firms' practices or requiring additional services might result in firms increasing their prices or discontinuing certain product offerings, potentially resulting in reduced access to credit.
The aforementioned small and rural small creditor special provisions were included in the January 2013 ATR Final Rule and the January 2013 Escrows Final Rule (along with the May 2013 ATR Final Rule) in order to alleviate potential access to credit concerns. Note that some of these provisions were Congressionally mandated. The final provisions expand the number of financial institutions that qualify for these special provisions. Accordingly, there are two effects on consumers that originate their mortgage loans with the creditors that are exempted by the final provisions: a potential benefit from an increase in access to credit and a potential cost from reduction of certain consumer protections.
As noted above, the potential benefit of the final provisions for consumers is a potential increase in access to credit. The magnitude of this potential increase depends on whether, but for the provisions in the final rule affecting rural small creditors: (1) Financial institutions that are covered by the final provisions stop or curtail originating mortgage loans in particular market segments or increase the price of credit in those market segments in numbers sufficient to have an adverse impact on those market segments, (2) the financial institutions that remain in those market segments do not provide a sufficient quantum of mortgage loan origination at the non-increased price, and (3) there is not significant new entry into the market segments left by the departing institutions. If, but for the final rule, all three of these scenarios are realized, then the final rule increases access to credit.
Analogously, the magnitude of this potential increase in access to credit depends on whether, in the absence of the provisions in the final rule affecting small creditors and escrow accounts:
The Bureau received comments suggesting that access to credit will indeed be curtailed but for the final provisions (or is already curtailed, but could be increased after these provisions become effective). These comments are discussed in the section-by-section analysis. The evidence provided in these comments appears to be largely anecdotal. The Bureau's data do not refute the commenters' assertions; however, the Bureau does not have the direct evidence to estimate the degree to which the final provisions would increase access to credit.
In a series of analyses, the Bureau did not find specific evidence that the final provisions would increase access to credit when analyzing data on various consumers' characteristics (credit scores,
The cutoff of five competitors is arguably enough to ensure a sufficient amount of competition for a close-to-homogenous product. However, the Bureau does not mean to imply that, for example, first-lien covered transactions in a county constitute a market in the antitrust sense.
However, the Bureau's data are not complete and do not permit the Bureau to analyze various relevant hypotheses. For example, one possible theory that the Bureau's data do not confirm or negate is that there might be a lack of access to credit due to the particular idiosyncrasies of a property despite the fact that other properties in the same census tract are eligible for government-sponsored entity (GSE) backing. These idiosyncrasies could include, for instance, the absence of a septic tank on the property or the availability of running water only on some properties in that census tract.
Note that the presence of competition raises an important point related to some of the industry comments provided to the Bureau. While many commenters asserted access to credit issues, the implicit proof was that some smaller financial institutions could be originating fewer loans. However, even if true, that could simply mean that the same consumer would get a loan from a larger creditor instead. The Bureau's analysis of the data implies that this is at least a possibility.
Similarly, many commenters raised concerns that smaller financial institutions lack the economies of scale necessary for effective compliance and implementation of, for example, adjustable-rate mortgage disclosures or escrows. While this might be true, to the extent that outsourcing and contracting have not alleviated this issue, this is only a concern to consumers to the extent that larger creditors would not originate these loans. In other words, the lack of economies of scale is a concern to consumers only to the extent that the market is less competitive than it will otherwise be when the final provisions become effective.
The potential cost to consumers of the final provisions is the reduction of certain consumer protections as compared to the baseline established by the January 2013 ATR Final Rule, the May 2013 ATR Final Rule, and the January 2013 Escrows Final Rule. These consumer protections include a consumer's private cause of action against a creditor for violating the general ability-to-repay requirements and the requirement that every higher-priced mortgage loan have an associated escrow account for the payment of property taxes and insurance for five years.
In addition, under the January 2013 ATR Final Rule, after January 10, 2016, creditors that do not meet the definition of “small” and “rural or underserved” will not be able to claim qualified mortgage status for any newly-originated balloon-payment loans. Classifying a loan as a qualified mortgage when it would not have been a qualified mortgage otherwise (based on the small creditor portfolio special provision or the rural qualified mortgage balloon-payment special provision) or making a loan a safe harbor qualified mortgage loan when it would have otherwise been a rebuttable presumption qualified mortgage (based on the small creditor portfolio QM special provision) makes it more difficult for consumers to sue their creditor successfully for failing to properly evaluate the consumers' ability to repay while originating the loans.
A creditor may have an incentive to originate loans without considering ability to repay to the full extent. As the Bureau noted in the January 2013 ATR Final Rule, there are at least three reasons why these incentives exist. First, the creditor might re-sell the loan to the secondary market or might have at least a portion of the default risk insured by a third party. In this case, the creditor does not have the privately optimal incentive to verify ability to repay. The December 2014 Credit Risk Retention Final Rule's requirement of “skin in the game” is designed to ameliorate this issue.
Counting only the loans that are not kept in portfolio towards the origination limit ensures that a small creditor can always originate more portfolio loans without being concerned with the possibility of crossing the origination limit. The fact that a creditor keeps the loan in portfolio gives the creditor more incentives not to originate a loan that a consumer would not be able to repay: It potentially deals with the “skin in the game” issue described above.
However, a creditor keeping a loan in portfolio does not fully ensure that the creditor will only originate loans that
Escrow accounts protect consumers from a financial shock (sometimes unexpected, especially for first-time buyers) of having to pay the first lump-sum property tax bill all at once, possibly soon after spending much of the household's savings on the down payment and closing costs. Recent research argues that postponing that payment by nine months (which an escrow account approximates by spreading payments over time) decreases the probability of an early payment default by 3 to 4 percent.
The extent of the potential cost to consumers depends on whether, but for the final provisions expanding the special provisions of the January 2013 ATR Final Rule and May 2013 ATR Final Rule: (1) Creditors that qualify for special provisions solely due to the final provisions have incentives to originate loans that do not consider consumers' ability to repay despite these loans being in the creditors' portfolios; (2) consumers of these creditors who proved unable to repay are unable to secure effective loss mitigation options from the creditors that would leave consumers as well off as they would have been without getting a loan that they proved to be unable to repay; and (3) absent the final provisions, these creditors would have stronger incentives to consider consumers' ability to repay or the consumers would elect to sue their local lender, would succeed in obtaining counsel to represent them, and would prevail in such suits. The Bureau does not possess evidence to confirm or deny whether these conditions are satisfied. Anecdotal evidence suggests that smaller lenders' loans performed better than larger lenders loans through the crisis.
Similarly, the extent of the potential cost to consumers from expanding the special provisions of the January 2013 Escrows Final Rule depends on whether but for the final provisions: (1) The creditors that are exempted solely due to the final provisions would not provide escrow accounts for five years despite these loans being in the creditors' portfolios; (2) consumers of these creditors who experienced a shock due to the first-time lump-sum payment and proved to be unable to repay were unable to secure effective loss mitigation options from the creditors that would leave the consumers as well off as they otherwise would have been with an escrow account; and (3) consumers of these creditors actually experience such shocks.
As noted above, the Bureau estimates that the about 1,700 creditors that will be small and rural under the final provisions, but not under the currently effective rule, originated about 220,000 loans and 120,000 portfolio loans in 2013. Out of those 120,000 portfolio loans, 26,000 were portfolio higher-priced mortgage loans. The Bureau does not possess a good estimate of what percentage of these 120,000 portfolio loans are balloon-payment loans. Assuming HPML lending continued at the same level among these creditors, about 26,000 loans would lose the mandatory escrow protections; however, many of these creditors might extend escrow protections despite not being subject to a requirement to do so.
The Bureau believes that the approximately 700 creditors that will be small under the final provisions, but not under the currently effective rule, originated 720,000 loans, including 175,000 portfolio loans, in 2013. Out of those 175,000 portfolio loans the Bureau estimates that about 15,000 were portfolio higher-priced mortgage loans and 88 percent of those had an APR between 1.5 and 3.5 percentage points over APOR.
The creditors that will enjoy the special provisions experience benefits roughly symmetric to the protections that consumers lose. In particular, creditors that will qualify as rural small creditors will be able to originate qualified mortgage balloon-payment portfolio loans and pass the risk onto consumers, and small creditors could originate portfolio loans that would not be qualified mortgages or safe harbor qualified mortgages otherwise, resulting in a reduced probability of a successful lawsuit.
Some of these firm benefits could be passed through to consumers in terms of lower prices or better service. Economic theory suggests that the pass-through rate should be higher the more competitive markets are, all else being equal.
The benefit of originating balloon-payment loans to the firms is cheaper risk management. Consumers might not realize the riskiness involved in balloon-payment loans, encouraging the creditor to pass on the risk to consumers. The Bureau does not possess a good estimate of what percentage of these creditors' portfolio loans are balloon-payment loans.
The Bureau believes that an additional 1,700 creditors will qualify as small and rural due to the final provisions. These creditors will not have to provide consumers with escrow accounts when originating higher-priced mortgage loans; however, the Bureau believes that about 1,300 of the 1,700 creditors already originate higher-priced mortgage loans, thus these savings might be small (or none) for these firms since these firms currently have to provide escrow accounts. Note, that the marginal costs of providing an escrow account are small, if not negative: For various reasons, a creditor that has an escrow system established generally prefers consumers to establish an escrow account even if one is not required by government regulations.
Approximately 700 creditors will be deemed as small due to the final provisions. These creditors originated approximately 175,000 portfolio loans in 2013, out of which about 13,000 loans would be deemed safe harbor qualified mortgages due to the final provisions. The Bureau does not possess sufficient data to estimate what percentage of these loans would be qualified mortgages solely due to the final provisions. Loans being deemed qualified mortgages or safe harbor qualified mortgages imply a reduced risk of losing consumer-initiated ability-to-repay litigation. The Bureau previously estimated that this risk accounts for, at most, 0.1 percent of the loan amount.
Note that all 700 creditors are currently not eligible for the small creditor special provision, and thus any sunk costs necessary to transition to originating non-qualified mortgage loans have already been incurred, except for those creditors that have decided not to originate any non-qualified mortgage loans.
To be eligible for these benefits, the creditors might need to spend a nominal amount on checking whether they qualify for the special provisions. Since the final provisions are expanding special provisions and extending qualified mortgage status, covered persons will not experience any costs other than, potentially, a nominal amount to check whether they qualify for the exemptions or extensions of qualified mortgage status.
The Bureau is providing an extension of the two-year temporary special provision that effectively deemed all small creditors rural for the purposes of the rural qualified mortgage balloon-payment special provision. This temporary special provision, allowing these creditors to make qualified mortgage balloon-payment loans, is applicable (for transactions with mortgage applications received in the first three months of 2016) to any creditor that is currently small even if they do not operate predominantly in rural or underserved areas. The Bureau estimates that there are about 5,700 such creditors, and that they originated about 430,000 loans, out of which about 220,000 were portfolio loans in 2013. Note, that only the transactions with applications received in the first quarter of 2016 are eligible for this special provision. The Bureau does not possess a good estimate of what percentage of these portfolio loans are balloon-payment loans.
The benefits and costs to consumers and to covered persons are identical to the ones discussed above during the discussion of the rural balloon-payment qualified mortgage special provision. Note that various property idiosyncrasies that might make access to credit an issue in rural areas are less likely for the consumers of these 5,700 creditors since they do not operate predominantly in rural areas, even as defined by the final rule.
The Bureau is also finalizing an annual grace period for creditors that stop qualifying as either small creditors or small and rural creditors.
The only covered persons affected by the final provisions are those with no more than $10 billion in assets. The effect on these covered persons is described above.
The Bureau does not believe that there will be an adverse impact on access to credit resulting from the final provisions. Moreover, as described above, the Bureau received comments strongly suggesting that there will be an expansion of access to credit.
The rural small creditor final provisions affect only creditors operating predominantly in rural or underserved areas, as defined according to the definition that the Bureau is proposing. These creditors predominantly originate loans to consumers that live in rural areas, thus the vast majority of the up to 120,000 consumers that will be affected by these provisions live in rural areas. The effect of these final provisions is described above.
The creditors that will qualify as small due to the final provisions are about as well represented in rural as in non-rural areas, thus there will be no disproportionate effect on rural areas.
Instead of proposing (and finalizing) that a property is in a rural area if the property is either in one of the counties currently designated as rural by the Bureau or if the property is not in an urban area as designated by the Census Bureau, the Bureau considered proposing that a property is in a rural area only if the property is not in an urban area as designated by the Census Bureau. The effective difference between the two definitions is that under the finalized definition areas designated as urban areas by the Census Bureau that are located in counties currently designated as rural by the Bureau would be classified as rural, but these urban areas would not be classified as rural under the alternative.
For example, Wise County in Virginia (population of about 40,000, density of
In comparison to this alternative, the final provisions allow several hundred small creditors to continue to enjoy the special provisions for creditors operating predominantly in rural or underserved areas. Under the alternative, these creditors would have to incur the cost of adapting to originating mortgages without enjoying the provisions that they currently enjoy. Moreover, under the alternative, compliance might become more burdensome for the remaining creditors that would have qualified as rural small creditors even if the final rule were not to become effective: They would not be able to simply check a list of rural counties (as they do now), since parts of these counties would cease to be rural. These costs, both the cost of adaptation for some creditors and the cost of more complicated compliance for others, are likely fixed, and economic theory suggests that these creditors would not pass these costs on to consumers.
Other consumer benefits and costs and covered persons benefits and costs of these several hundred small creditors ceasing to qualify as rural are similar to the ones described above for the final provisions in general.
The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires each agency to consider the potential impact of its regulations on small entities, including small businesses, small governmental units, and small nonprofit organizations. The RFA defines a “small business” as a business that meets the size standard developed by the Small Business Administration pursuant to the Small Business Act.
The RFA generally requires an agency to conduct an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities.
In the Proposed Rule, the Bureau concluded that the proposal, if adopted, would not have a significant economic impact on a substantial number of small entities and that an initial regulatory flexibility analysis was therefore not required. This final rule adopts the Proposed Rule substantially as proposed. Therefore, a final regulatory flexibility analysis is not required.
The final rule does not have a significant economic impact on any small entities.
Accordingly, the undersigned certifies that this final rule will not have a significant economic impact on a substantial number of small entities.
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501
The Bureau has determined that this final rule does not impose any new or revised information collection requirements (recordkeeping, reporting, or disclosure requirements) on covered entities or members of the public that would constitute collections of information requiring OMB approval under the PRA.
Advertising, Consumer protection, Credit, Credit unions, Mortgages, National banks, Savings associations, Recordkeeping requirements, Reporting, Truth in lending.
For the reasons set forth in the preamble, the Bureau amends Regulation Z, 12 CFR part 1026, as set forth below:
12 U.S.C. 2601, 2603–2605, 2607, 2609, 2617, 3353, 5511, 5512, 5532, 5581; 15 U.S.C. 1601
(b) * * *
(2) * * *
(iii) * * *
(A) During the preceding calendar year, or, if the application for the transaction was received before April 1 of the current calendar year, during either of the two preceding calendar years, the creditor extended more than 50 percent of its total covered transactions, as defined by § 1026.43(b)(1), secured by first liens on properties that are located in areas that are either “rural” or “underserved,” as
(B) During the preceding calendar year, or, if the application for the transaction was received before April 1 of the current calendar year, during either of the two preceding calendar years, the creditor and its affiliates together extended no more than 2,000 covered transactions, as defined by § 1026.43(b)(1), secured by first liens, that were sold, assigned, or otherwise transferred to another person, or that were subject at the time of consummation to a commitment to be acquired by another person;
(C) As of the preceding December 31st, or, if the application for the transaction was received before April 1 of the current calendar year, as of either of the two preceding December 31sts, the creditor and its affiliates that regularly extended covered transactions, as defined by § 1026.43(b)(1), secured by first liens, together, had total assets of less than $2,000,000,000; this asset threshold shall adjust automatically each year, based on the year-to-year change in the average of the Consumer Price Index for Urban Wage Earners and Clerical Workers, not seasonally adjusted, for each 12-month period ending in November, with rounding to the nearest million dollars (see comment 35(b)(2)(iii)–1.iii for the applicable threshold); and
(D) Neither the creditor nor its affiliate maintains an escrow account of the type described in paragraph (b)(1) of this section for any extension of consumer credit secured by real property or a dwelling that the creditor or its affiliate currently services, other than:
(
(iv) * * *
(A) An area is “rural” during a calendar year if it is:
(
(
(B) An area is “underserved” during a calendar year if, according to Home Mortgage Disclosure Act (HMDA) data for the preceding calendar year, it is a county in which no more than two creditors extended covered transactions, as defined in § 1026.43(b)(1), secured by first liens on properties in the county five or more times.
(C) A property shall be deemed to be in an area that is rural or underserved in a particular calendar year if the property is:
(
(
(
(e) * * *
(6)
(i) Notwithstanding paragraph (e)(2) of this section, a qualified mortgage is a covered transaction:
(A) That satisfies the requirements of paragraph (f) of this section other than the requirements of paragraph (f)(1)(vi); and
(B) For which the creditor satisfies the requirements stated in § 1026.35(b)(2)(iii)(B) and (C).
(ii) The provisions of this paragraph (e)(6) apply only to covered transactions for which the application was received before April 1, 2016.
The revisions read as follows:
1.
i. During the preceding calendar year, or during either of the two preceding calendar years if the application for the loan was received before April 1 of the current calendar year, more than 50 percent of the creditor's total first-lien covered transactions, as defined in § 1026.43(b)(1), are secured by properties located in areas that are either “rural” or “underserved,” as set forth in § 1026.35(b)(2)(iv).
A. In general, whether this condition (the more than 50 percent test) is satisfied depends on the creditor's activity during the preceding calendar year. However, if the application for the loan in question was received before April 1 of the current calendar year, the creditor may instead meet the more than 50 percent test based on its activity during the next-to-last calendar year. This provides creditors with a grace
B. A creditor meets the more than 50 percent test for any higher-priced mortgage loan consummated during a calendar year if a majority of its first-lien covered transactions in the preceding calendar year are secured by properties located in rural or underserved areas. If the creditor's transactions in the preceding calendar year do not meet the more than 50 percent test, the creditor meets this condition for a higher-priced mortgage loan consummated during the current calendar year only if the application for the loan was received before April 1 of the current calendar year and a majority of the creditor's first-lien covered transactions during the next-to-last calendar year are secured by properties located in rural or underserved areas. The following examples are illustrative:
ii. The creditor and its affiliates together extended no more than 2,000 covered transactions, as defined in § 1026.43(b)(1), secured by first liens, that were sold, assigned, or otherwise transferred by the creditor or its affiliates to another person, or that were subject at the time of consummation to a commitment to be acquired by another person, during the preceding calendar year or during either of the two preceding calendar years if the application for the loan was received before April 1 of the current calendar year. For purposes of § 1026.35(b)(2)(iii)(B), a transfer of a first-lien covered transaction to “another person” includes a transfer by a creditor to its affiliate.
A. In general, whether this condition is satisfied depends on the creditor's activity during the preceding calendar year. However, if the application for the loan in question is received before April 1 of the current calendar year, the creditor may instead meet this condition based on activity during the next-to-last calendar year. This provides creditors with a grace period if their activity falls at or below the threshold in one calendar year but exceeds it in the next calendar year.
B. For example, assume that in 2015 a creditor and its affiliates together extended 1,500 loans that were sold, assigned, or otherwise transferred by the creditor or its affiliates to another person, or that were subject at the time of consummation to a commitment to be acquired by another person, and 2,500 such loans in 2016. Because the 2016 transaction activity exceeds the threshold but the 2015 transaction activity does not, the creditor satisfies this condition for exemption for a higher-priced mortgage loan consummated during 2017 if the creditor received the application for the loan before April 1, 2017, but does not satisfy this condition for a higher-priced mortgage loan consummated during 2017 if the application for the loan was received on or after April 1, 2017.
C. For purposes of § 1026.35(b)(2)(iii)(B), extensions of first-lien covered transactions, during the applicable time period, by all of a creditor's affiliates, as “affiliate” is defined in § 1026.32(b)(5), are counted toward the threshold in this section. “Affiliate” is defined in § 1026.32(b)(5) as “any company that controls, is controlled by, or is under common control with another company, as set forth in the Bank Holding Company Act of 1956 (12 U.S.C. 1841
iii. As of the end of the preceding calendar year, or as of the end of either of the two preceding calendar years if the application for the loan was received before April 1 of the current calendar year, the creditor and its affiliates that regularly extended covered transactions secured by first liens, together, had total assets that are less than the applicable annual asset threshold.
A. For purposes of § 1026.35(b)(2)(iii)(C), in addition to the creditor's assets, only the assets of a creditor's “affiliate” (as defined by § 1026.32(b)(5)) that regularly extended covered transactions (as defined by § 1026.43(b)(1)) secured by first liens, are counted toward the applicable annual asset threshold.
B. Only the assets of a creditor's affiliate that regularly extended first-lien covered transactions during the applicable period are included in calculating the creditor's assets. The meaning of “regularly extended” is based on the number of times a person extends consumer credit for purposes of the definition of “creditor” in § 1026.2(a)(17). Because covered transactions are “transactions secured by a dwelling,” consistent with § 1026.2(a)(17)(v), an affiliate regularly extended covered transactions if it extended more than five covered transactions in a calendar year. Also consistent with § 1026.2(a)(17)(v), because a covered transaction may be a high-cost mortgage subject to § 1026.32, an affiliate regularly extends covered transactions if, in any 12-month period, it extends more than one covered transaction that is subject to the requirements of § 1026.32 or one or more such transactions through a mortgage broker. Thus, if a creditor's affiliate regularly extended first-lien covered transactions during the preceding calendar year, the creditor's assets as of the end of the preceding calendar year, for purposes of the asset limit, take into account the assets of that
C. If multiple creditors share ownership of a company that regularly extended first-lien covered transactions, the assets of the company count toward the asset limit for a co-owner creditor if the company is an “affiliate,” as defined in § 1026.32(b)(5), of the co-owner creditor. Assuming the company is not an affiliate of the co-owner creditor by virtue of any other aspect of the definition (such as by the company and co-owner creditor being under common control), the company's assets are included toward the asset limit of the co-owner creditor only if the company is controlled by the co-owner creditor, “as set forth in the Bank Holding Company Act.” If the co-owner creditor and the company are affiliates (by virtue of any aspect of the definition), the co-owner creditor counts all of the company's assets toward the asset limit, regardless of the co-owner creditor's ownership share. Further, because the co-owner and the company are mutual affiliates the company also would count all of the co-owner's assets towards its own asset limit.
D. A creditor satisfies the criterion in § 1026.35(b)(2)(iii)(C) for purposes of any higher-priced mortgage loan consummated during 2016, for example, if the creditor (together with its affiliates that regularly extended first-lien covered transactions) had total assets of less than the applicable asset threshold on December 31, 2015. A creditor that (together with its affiliates that regularly extended first-lien covered transactions) did not meet the applicable asset threshold on December 31, 2015 satisfies this criterion for a higher-priced mortgage loan consummated during 2016 if the application for the loan was received before April 1, 2016 and the creditor (together with its affiliates that regularly extended first-lien covered transactions) had total assets of less than the applicable asset threshold on December 31, 2014.
E. Under § 1026.35(b)(2)(iii)(C), the $2,000,000,000 asset threshold adjusts automatically each year based on the year-to-year change in the average of the Consumer Price Index for Urban Wage Earners and Clerical Workers, not seasonally adjusted, for each 12-month period ending in November, with rounding to the nearest million dollars. The Bureau will publish notice of the asset threshold each year by amending this comment. For historical purposes:
1.
1.
i. Under § 1026.35(b)(2)(iv)(A), an area is rural during a calendar year if it is: A county that is neither in a metropolitan statistical area nor in a micropolitan statistical area that is adjacent to a metropolitan statistical area; or a census block that is not in an urban area, as defined by the U.S. Census Bureau using the latest decennial census of the United States. Metropolitan statistical areas and micropolitan statistical areas are defined by the Office of Management and Budget and applied under currently applicable Urban Influence Codes (UICs), established by the United States Department of Agriculture's Economic Research Service (USDA–ERS). For purposes of § 1026.35(b)(2)(iv)(A)(
ii. Under § 1026.35(b)(2)(iv)(B), an area is underserved during a calendar year if, according to Home Mortgage Disclosure Act (HMDA) data for the preceding calendar year, it is a county in which no more than two creditors extended covered transactions, as defined in § 1026.43(b)(1), secured by first liens, five or more times on properties in the county. Specifically, a
iii. A. Each calendar year, the Bureau applies the “underserved” area test and the “rural” area test to each county in the United States. If a county satisfies either test, the Bureau will include the county on a published list of counties that are rural or underserved as defined by § 1026.35(b)(2)(iv)(A)(
B. A property is deemed to be in a rural or underserved area according to the definitions in § 1026.35(b)(2)(iv) during a particular calendar year if it is identified as such by an automated tool provided on the Bureau's public Web site. A printout or electronic copy from the automated tool provided on the Bureau's public Web site designating a particular property as being in a rural or underserved area may be used as “evidence of compliance” that a property is in a rural or underserved area, as defined in § 1026.35(b)(2)(iv)(A) and (B), for purposes of the record retention requirements in § 1026.25.
C. The U.S. Census Bureau may provide on its public Web site an automated address search tool that specifically indicates if a property is located in an urban area for purposes of the Census Bureau's most recent delineation of urban areas. For any calendar year that began after the date on which the Census Bureau announced its most recent delineation of urban areas, a property is deemed to be in a rural area if the search results provided for the property by any such automated address search tool available on the Census Bureau's public Web site do not designate the property as being in an urban area. A printout or electronic copy from such an automated address search tool available on the Census Bureau's public Web site designating a particular property as not being in an urban area may be used as “evidence of compliance” that the property is in a rural area, as defined in § 1026.35(b)(2)(iv)(A), for purposes of the record retention requirements in § 1026.25.
D. For a given calendar year, a property qualifies for a safe harbor if any of the enumerated safe harbors affirms that the property is in a rural or underserved area or not in an urban area. For example, the Census Bureau's automated address search tool may indicate a property is in an urban area, but the Bureau's rural or underserved counties list indicates the property is in a rural or underserved county. The property in this example is in a rural or underserved area because it qualifies under the safe harbor for the rural or underserved counties list. The lists of counties published by the Bureau, the automated tool on its public Web site, and the automated address search tool available on the Census Bureau's public Web site, are not the exclusive means by which a creditor can demonstrate that a property is in a rural or underserved area as defined in § 1026.35(b)(2)(iv)(A) and (B). However, creditors are required to retain “evidence of compliance” in accordance with § 1026.25, including determinations of whether a property is in a rural or underserved area as defined in § 1026.35(b)(2)(iv)(A) and (B).
2.
ii. A county is considered an “underserved” area for a given calendar year based on the most recent available HMDA data. For example, assume a creditor makes first-lien covered transactions in County Y during calendar year 2016, and the most recent HMDA data are for calendar year 2015, published in the third quarter of 2016. The creditor will use the 2015 HMDA data to determine “underserved” area status for County Y in calendar year 2016 for the purposes of qualifying for the “rural or underserved” exemption for any higher-priced mortgage loans consummated in calendar year 2017 or for any higher-priced mortgage loan consummated during 2018 for which the application was received before April 1, 2018.
1. * * *
i. * * *
A. * * *
4.
8.
1.
i. During the preceding calendar year or during either of the two preceding calendar years if the application for the transaction was received before April 1 of the current calendar year, the creditor extended over 50 percent of its total first-lien covered transactions, as defined in § 1026.43(b)(1), on properties that are located in areas that are designated either “rural” or “underserved,” as defined in § 1026.35(b)(2)(iv), to satisfy the requirement of § 1026.35(b)(2)(iii)(A). Pursuant to § 1026.35(b)(2)(iv), an area is considered to be rural if it is: A county that is neither in a metropolitan statistical area, nor a micropolitan statistical area adjacent to a metropolitan statistical area, as those terms are defined by the U.S. Office of Management and Budget; or a census block that is not in an urban area, as defined by the U.S. Census Bureau using the latest decennial census of the United States. An area is considered to be underserved during a calendar year if, according to HMDA data for the preceding calendar year, it is a county in which no more than two creditors extended covered transactions secured by first liens on properties in the county five or more times.
A. The Bureau determines annually which counties in the United States are rural or underserved as defined by § 1026.35(b)(2)(iv)(A)(
B. For example, if a creditor extended 100 first-lien covered transactions during 2016 and 90 first-lien covered transactions during 2017, the creditor meets this element of the exception for any transaction consummated during 2018 if at least 46 of its 2017 first-lien covered transactions are secured by properties that are located in one or more counties on the Bureau's lists for 2017 or are located in one or more census blocks that are not in an urban area, as defined by the Census Bureau.
C. Alternatively, if the creditor's 2017 transactions do not meet the over 50 percent test (
ii. During the preceding calendar year, or, if the application for the transaction was received before April 1 of the current calendar year, during either of the two preceding calendar years, the creditor together with its affiliates extended no more than 2,000 covered transactions, as defined by § 1026.43(b)(1), secured by first liens, that were sold, assigned, or otherwise transferred to another person, or that were subject at the time of consummation to a commitment to be acquired by another person, to satisfy the requirement of § 1026.35(b)(2)(iii)(B).
iii. As of the preceding December 31st, or, if the application for the transaction was received before April 1 of the current calendar year, as of either of the two preceding December 31sts, the creditor and its affiliates that regularly extended covered transactions secured by first liens, together, had total assets that do not exceed the applicable asset threshold established by the Bureau, to satisfy the requirement of § 1026.35(b)(2)(iii)(C). The Bureau publishes notice of the asset threshold each year by amending comment 35(b)(2)(iii)–1.iii.
2.
1.
Fish and Wildlife Service, Interior.
Final rule.
We, the U.S. Fish and Wildlife Service (Service), are listing the military macaw (
This rule becomes effective November 2, 2015.
This final rule is available on the Internet at
Janine Van Norman, Chief, Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service, 5275 Leesburg Pike, Falls Church, VA 22041; telephone 703–358–2171. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800–877–8339.
On January 31, 2008, the Service received a petition dated January 29, 2008, from Friends of Animals, represented by the Environmental Law Clinic, University of Denver, Sturm College of Law, requesting that we list 14 parrot species under the Endangered Species Act of 1973, as amended (ESA or Act; 16 U.S.C. 1531
We are listing the military macaw (
In this final rule, we used public comments and peer review to inform our final determination, as required under the Act. When we published the proposed rule on July 6, 2012 (77 FR 40172), we opened a 60-day comment period on the proposed listing for these species. During the comment period, we sought comments from independent specialists (peer reviewers) on the specific assumptions and conclusions in our listing proposal to ensure that the designation of these species as endangered is based on scientifically sound data, assumptions, and analyses. In addition, we sought comments from interested parties and the public. We considered all comments and information received during the comment period. In this final rule, we present and respond to peer reviewer and public comments. This rule finalizes the protections proposed for these two foreign bird species as endangered species, following careful consideration of all comments we received during the public comment period.
Section 4(b)(1)(A) of the ESA directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.” Further, this action is not a “significant” regulatory action under Executive Order 12866. Therefore, we have not analyzed its costs or benefits.
Section 4(b)(3)(B) of the ESA (16 U.S.C. 1531
In this document, we announce that listing these two species as endangered species is warranted, and we are adding these two species to the Federal List of Endangered and Threatened Wildlife in title 50 of the Code of Federal Regulations.
On January 31, 2008, the Service received a petition dated January 29, 2008, from Friends of Animals, as represented by the Environmental Law Clinic, University of Denver, Sturm College of Law, requesting that we list 14 parrot species under the ESA. The petition clearly identified itself as a petition and included the requisite information required in the Code of Federal Regulations (50 CFR 424.14(a)). On July 14, 2009 (74 FR 33957), we published a 90-day finding in which we determined that the petition presented substantial scientific and commercial information to indicate that listing may be warranted for 12 of the 14 parrot species.
In our 90-day finding on this petition, we announced the initiation of a status review to list as endangered or threatened under the ESA the following 12 parrot species: Blue-headed macaw
On July 21, 2010, a settlement agreement was approved by the Court (CV–10–357, D. DC), in which the Service agreed to submit to the
On August 9, 2011, the Service published in the
On October 6, 2011, we published a 12-month status review finding for the red-crowned parrot (76 FR 62016); on October 11, 2011, we published a 12-month status review and proposed rule for the yellow-billed parrot (76 FR 62740); and on October 12, 2011, we published a 12-month status review for the blue-headed macaw and grey-cheeked parakeet (76 FR 63480).
On September 16, 2011, an extension to the settlement agreement was approved by the Court (CV–10–357, D. DC), in which the Service agreed to submit a determination for the remaining four petitioned species to the
On July 6, 2012, the Service published in the
Upon publication in the
In our proposed rule, published July 6, 2012 (77 FR 40172), we announced that listing the military macaw and the great green macaw as endangered was warranted, and we issued a proposed rule to add these two species to the Federal List of Endangered and Threatened Wildlife. The comment period ended on September 4, 2012; we received 59 comments from the public.
In response to requests received during the public comment period, we reopened another public comment period on February 21, 2013, which ended on April 22, 2013 (78 FR 12011). During the second comment period (see
We base this finding on a review of the best scientific and commercial information available, including all information received during the public comment period. In the September 4, 2012, proposed rule, we requested that all interested parties submit information that might contribute to development of a final rule. On February 21, 2013, we reopened the public comment period where we again requested that all interested parties submit information that might contribute to development of a final rule. We also contacted appropriate scientific experts and organizations and invited them to comment on the proposed listings. We received comments from four individuals; one of which was from a peer reviewer.
We thank all the commenters for their interest in the conservation of this species and thank those commenters who provided information for our consideration in making this listing determination. Under section 4(b) of the Act, the Service is required to make listing determinations solely on the basis of the best scientific and commercial data available after conducting a review of the status of the species. When we published our proposed rule, we opened a public comment period during which we requested any additional information on the great green and military macaw. In making this listing determination, we reviewed the best available scientific and commercial information, contacted species experts, and searched for the most current information on these species with due diligence. Therefore, we have obtained and considered the “best scientific and commercial data available” in our listing determination. After careful consideration, we conclude that these species meet the definition of an endangered species under the Act.
The military macaw (
Because it is a strong flyer (it has been observed traveling up to 20 kilometers (km) (12 miles [mi]) per day) and it is a semi-migratory species, the physical similarities suggest that seemingly isolated populations may be in contact (Juniper and Parr 1998, p. 423), and, therefore, their populations may be exchanging genetic material.
For the purpose of this rule, we are addressing the military macaw at the species level. Therefore, we are listing the military macaw species as an endangered species, which includes all subspecies.
The military macaw is an extremely vocal species; it is described as being very noisy and is known to shriek (Birdlife International (BLI) 2011, p. 1). It is a large macaw (70 centimeters or 27.5 inches in length) and is vibrant in color. It has dark lime-green feathers mixed with blue flight feathers that are olive-colored underneath. Its forehead is red, and it has a bare white facial area and a black bill. Its lower back is blue; its tail is red and blue. The southernmost population in Bolivia, which extends into Argentina, exhibits reddish brown on their throats and cheeks (Juniper and Parr 1998, p. 423). This species is often confused with the great green macaw (
Military macaws nest in tree cavities and cliffs. Cliff-nesting parrots, such as the military macaw, also nest colonially (in groups) (Bonilla-Ruz et al. 2007a, pp. 730–731). Cliff cavities located in ravines used by this species have been documented 25 and 30 meters (m) (82 to 98 feet (ft)) above ground (Arcos-Torres and Solano-Ugalde 2008, p. 71). Tree cavities used by this species have been observed to be 18 m (60 ft) above ground and are approximately 75 cm (29.5 inches) deep (Baker 1958, p. 98). This species has also been observed to use secondary cavities, such as abandoned woodpecker holes, particularly in dead pine trees (Strewe and Navarro 2004, p. 50). Military macaws alternate nesting and foraging areas based on food availability (Bonilla-Ruz 2006, p. 1). Nesting appears to be synchronous with the peak fruiting season, which occurs during April and May (Huatatoca pers. comm. in Arcos-Torres and Solano-Ugalde 2008, p. 70). The military macaw is a social species that congregates in small flocks and is often observed in mated pairs. Its clutch size is usually two to three eggs. They begin reproducing between 3 and 4 years of age (Mexican National Commission for Protected Areas [CONANP] 2006 in Bonilla-Ruz 2006, p. 2). Colonial nesting is believed to be due to the lack of suitable disbursed nest sites, which may also explain why they are concentrated in certain sites (Salinas-Melgoza et al. 2009, p. 306).
This species prefers the lower montane wet forests of the Andes. It inhabits remaining fragmented forested area in the Neotropics. However, in the northernmost part of its range, in Mexico, it is associated with seasonally dry, semi-deciduous tropical forest, deciduous tropical forest, and slopes of pine-oak forest (Bonilla-Ruz et al. 2007b, pp. 45–47; Rivera-Ortiz et al. 2006, p. 26).
The military macaw is a seasonal migrant, based on food and nutrient availability. In some areas, it has been observed at clay licks to obtain sodium and possibly other minerals, which is a common activity in some parrot species (Lee 2010, p. 58). Its diet varies seasonally. Some of the plant species it was observed feeding on include (Rivera-Ortiz et al. 2013, p. 1211; Carillo et al. 2013, p. 46; Huellega 2011, p. 9; Moschione 2007, in Navarro et al., 2008, p. 2; Contreras-González et al. 2006, p. 387; Renton 2004, p. 12; Juniper and Parr 1998, p. 422):
Seeds were found to be 39 percent of this species' diet. They have also been observed feeding on bromeliad stems (species unknown) and cacti (species unknown). In the northern part of its range in Mexico, military macaws have been observed in desert habitat, although they tend to have lower reproductive success in this habitat type (Rivera-Ortiz et al. 2008, p. 261). In desert habitat, which is suboptimal, it has been observed consuming some flowers (species unidentified). Despite the low seasonal abundance of food, deserts offer some refuge from poaching due to the inhospitable dry climate, which can act as a deterrent to poachers (Rivera-Ortiz et al. 2008, p. 261). In addition, macaws tend to nest at very high locations, which can make it difficult for poachers to reach them.
The military macaw is distributed in highly fragmented, small populations in Mexico and South America, with a distribution gap in Central America (BLI 2014a, pp. 1–2; Rivera-Ortiz 2013, p. 1,201; Juarez et al 2012, pp. 6–7). Its range extends from northern Mexico southward into Ecuador, Peru, Colombia, Venezuela, Bolivia, and the southern tip of Argentina (see Figure 1 for an approximation of its range and distribution). The species has been described as patchily distributed throughout the eastern foothills of the Andes Mountains (Snyder et al. 2000, p. 125). It occurs in altitudes up to 1,600 m (5,249 ft) (Strewe and Navarro 2004, p. 50; Snyder et al. 2000, pp. 102, 124–125). Although it has a large distribution (276,000 km
Its population is estimated to be 6,667–13,333 mature individuals (BLI 2014, pp. 1–2; Rivera-Ortiz et al. 2013, p. 1,201). Most areas where this species occurs are now estimated to have fewer than 100 individuals. However, in 2004, other populations in Colombia and Mexico were estimated to be 100–200 individuals (Flórez and Sierra 2004, p. 3). This species may have occurred in Guatemala in the past, but it is no longer found there (Gardner 1972 in Snyder et al. 2000, p. 125). Overall, its populations are fragmented and becoming more isolated (Rivera-Ortiz 2008, p. 256).
The species inhabits tropical, semi-deciduous forests along the Pacific and Atlantic slopes through Central and South America. The best available information indicates there are reasonably healthy but small populations in El Cielo and Sierra Gorda Biosphere Reserves (Sierra meaning mountain range) in Mexico, Madidi and Amboró National Parks, Pilón Lajas Biosphere Reserve and Apolobamba National Integrated Management Area in Bolivia, and Manu Biosphere Reserve and Bahuaja Sonene National Park in Peru, and a small but stable remnant population in Tehuacan-Cuicatlan Biosphere Reserve, Oaxaca, Mexico (Lowry 2014, p. 3; Hosner et al. 2009, p. 222; Arizmendi 2008, p. 3; Rivera-Ortiz 2008, p. 256). The population from Tehuacan-Cuicatlan Biosphere Reserve, Oaxaca is about 100 macaws (Bonilla et al. 2007a, p. 731).
Argentina is the southernmost part of this species' range, and the species was never thought to have been abundant there (Navarro et al. 2008, p. 1). In fact, this species was initially thought to be extirpated (locally extinct) in Argentina, but surveys have found small populations in at least two locations in the northern province of Salta (Grilli et al 2013, p. 235; Juarez et al 2012, pp. 7–8). There are anecdotal reports of this species crossing the Itaú River (Navarro et al. 2008, p. 3), which borders Bolivia and Argentina. Between 2005 and 2007, approximately 100 individuals were observed in the Salta Province. These areas include: Finca Itaguazuti, and the Acambuco Provincial Flora and Fauna Reserve (8,266 hectares [ha] or 20,426 acres [ac]) in the Tartagal Mountains and which borders Bolivia (BLI 2014; Navarro et al. 2008, pp. 1, 4; Coconier et al. 2007, p. 59). In 2008, flocks of between 4 and 40 individuals of this species were observed in three ravines in the Salta Province. These locations were the Agua Fresca (Cool Water) Ravine north of Campo Cauzuti, El Limón Ravine (which had the largest population), and the Caraparí River Ravine. These are believed to be established populations, rather than flocks crossing over from Bolivia (Navarro et al. 2008, pp. 1, 4).
In Bolivia, the military macaw is regularly observed in five national parks: Tambopata National Reserve, Pilón Lajas Biosphere Reserve, Madidi National Park, Apolobamba National Integrated Management Area, and Amboró National Park (Hennessey 2011, pers. comm.). This species exists in the Andean foothills in Bolivia in forested areas extending from the northern Tambopata National Reserve to the southern Pilón Lajas Reserve (Hennessey et al. 2003, pp. 319, 329). These parks are in the general vicinity of the border of southern Peru and northern Bolivia (Hosner et al. 2009, p. 222; Navarro et al. 2008, p. 2; Hennessey et al. 2003, p. 322). They are part of the Greater Madidi-Tambopata Landscape (GMTL) (also known as “Parque Nacional Madidi”). Within the GMTL, there are thought to be reasonably healthy populations of this species in the Apolobamba National Integrated Management Area, Amboró and Madidi National Parks, and Pilón Lajas Biosphere Reserve (Hennessey 2011 pers. comm.; Hosner et al. 2009, p. 225). The Greater Madidi-Tambopata Landscape is 110,074 km
In 2008, this species was observed at Serranía Sadiri in Madidi National Park, La Paz Department, Bolivia (Hosner et al. 2009, p. 225). Serranía Sadiri is found just inside Madidi National Park. Here, flocks of between 2 and 36 individuals have been observed (Hosner et al. 2009, p. 228). The Pilón Lajas Biosphere Reserve is primarily in La Paz Department, but slightly overlaps into the Beni Department. Here, this species is described as uncommon (Hennessey 2003, p. 329). It was observed in Parapetiguasu-Taremakua, and Parapetiguas-Uruwigua in Santa Cruz, Cordillera Province, and at Altamachi and Madidi in Cochabamba, Ayopaya Province (MacLeod 2009, pp. 42–43). In summary, within Bolivia, there are many small populations of this species in areas that provide suitable habitat for this species (primarily large forest patches under some form of protection).
In the late 1990s, there were approximately five disjunct populations in the central Andes Mountains (Snyder et al. 2000, p. 125). In Colombia, groups of 50 individuals have been observed, and in one case, a population was estimated to have 156 individuals (Flórez and Sierra 2004, pp. 2–3). In most cases, these individuals reside on cliff formations that are favorable for nesting (where they are less accessible to poachers), and where deforestation is having less of an impact (Flórez and Sierra 2004, pp. 2–3; Rodriguez and Hernández-Camacho 2002, p. 203). In Colombia, this species inhabits a wide range of altitudes and areas with various degrees of alteration (Flórez and Sierra 2004, pp. 1–3; Juniper and Parr 1998). In Colombia, this species has been observed between altitudes of 700 and 1,600 m (2,297 to 5,249 ft) (Flórez and Sierra 2004, pp. 1–3; Salaman et al. 2002, pp. 167, 187). Populations have been observed in Guajira peninsula, Las Orquideas, Tayrona National Park, Serranía de Perijá, Serranía de San Lucas, San Salvador Valley, Sierra Nevada De Santa Marta, La Guajira Department, and Cueva de los Guacharos National Park (Strewe and Navarro 2003, p. 3). In 1998, this species was observed in flocks of up to 12 individuals at Villa Iguana and Alto Cagadero in Serranía de los Churumbelos (Salaman et al. 2007, pp. 33, 38, 47, 89). It has been observed in palm stands in the San Salvador valley during the breeding season (December–July) (Strewe and Navarro 2003, p. 33).
There are two small, stable populations of military macaws at Sierra Nevada de Santa Marta and Churumbelos, Cauca, with approximately 50 mature birds at each site (Fundación ProAves 2011, p. 28). In 2004, Flórez and Sierra estimated that the population in the cliffs of the Cauca River was 156 individuals and contained 54 breeding pairs and 26 nests (2004, p. 3). However, this population is subjected to impacts from poaching and deforestation (Flórez and Sierra, 2004, pp. 3–4), so the population now may be smaller. These researchers also noted that many chicks fall from the cliff nests and die. As of 2011, there were no recent records in northern Antioquia (Paramillo), Serranía de San Lucas, or Perijá ranges (Fundación ProAves 2011, pp. 28–29).
In the Frío Valley of Colombia, this species is reported to be present only during the breeding season (Strewe and Navarro 2004, p. 50). Several nests were found here in forest fragments. A population at El Congo Reserve was intensively studied in 2001. One nest was located 12 m (39 ft) above ground in a
In Ecuador, this species is considered to be very rare (Arcos-Torres and Solano-Ugalde 2008, p. 71). This species has been observed in the areas of Sumaco and Zamora–Chinchipe in Ecuador (Snyder et al. 2000, p. 125) and at Kichwa River Reserve (Reserva Kichwa Río), within the Gran Sumaco Guacamayos Biosphere Reserve (Arcos-Torres and Solano-Ugalde 2008, p. 72). Most records of military macaw in Ecuador during the 1980s and 1990s found groups of up to 20 individuals (Ridgely and Greenfield 2001); however, lately most records have not exceeded 8 individuals (Arcos-Torres and Solano-Ugalde 2008, p. 71) except for a breeding colony of 16 individuals that was observed in the Reserva Kichwa Río (Arcos-Torres and Solano-Ugalde 2008, pp. 70–72). Prior to 1980, it was observed in the upper Upano River Valley (Ridgely 1980 p. 244). In 2006, 200 ha (494 ac) were turned into the Narupa Reserve, where this species was observed in approximately 2010 (Fundación ProAves et al. 2010, p. 42). Additionally, in 2010, a pair of military macaws was observed in northern Ecuador in the Sumaco region (Olah and Barnes 2010, p. 19).
There are several small populations of military macaws in Mexico, each consisting of between approximately 20 and 90 individuals (Jimenez-Arcos et al. 2012, p. 864; Rivera-Ortiz et al. 2008, p. 256), although there has been an anecdotal report of a population estimated to be 130 individuals (Bonilla 2012, p. 6). This species follows seasonal food sources, so flocks move to other areas seasonally. In Mexico, there are reasonably healthy but small populations in the following areas:
In Mexico, there may also be isolated populations of military macaws in other States. Figure 2 shows the approximate present day and historical distribution of the military macaw in Mexico as of 2008 (Arizmendi 2008, p. 4). Other States where it may exist include Colima, Durango, Michoacán, Morelos, Nayarit (in the Valley of Flags or “Valle de Banderas”), Nuevo León, San Luis Potosí, and Zacatecas. Areas where it has been recently documented are described below.
Researchers believe there is a remaining population in the Sierra Madre Occidental Mountains (north-central Mexico) in Otachique (Cruz-Nieto et al. 2006, p. 14). In 2005, 25 nests were observed (Cruz-Nieto et al. 2006, p. 14). This canyon is approximately 700 m (0.5 miles) wide by 14 km (8.6 miles) in length and consists of mature pines, firs, and oaks. Some gallery temperate forest remains in this area.
A colony of approximately 20 military macaws was studied between 2006 and 2010 in the vicinity of Copalillo, Guerrero (Jiménez-Arcos et al. 2012, pp. 864–865). The vegetation is tropical deciduous forest; and a canyon is present.
This species is found sporadically in small groups of a few to approximately 100 macaws in the western foothills of Sierra del Cuale and Sierra Cacoma in Jalisco on the western coast of Mexico (Renton 2004, pp. 13–14). Other groups of macaws in the region are in Cabo Corrientes in the Horcones river basin (approximately 100 macaws). There are other small populations in the vicinity of Puerto Vallarta (Carrillo et al. 2013, pp. 45, 47). This species was observed in 2004 near a freshwater lake, Cajón de Peña (26 by 9 km (16 by 5.6 mi) in size), which was constructed in 1976. It is found in the Chamela-Cuixmala Biosphere Reserve (132,000 ha or 32,617 ac), which is managed by Mexico's Instituto de Ecologia of the National Autonomous University of Mexico (UNAM) and nongovernmental organizations (NGOs). Patches of semi-deciduous forest in this area form corridors between existing protected areas, such as the Chamela-Cuixmala and the Sierra Manatlán Biosphere Reserves (Renton 2004, p. 14). These patches likely have served as critical ecological links for this species.
This species has recently been the focus of research in Sabino Canyon, Oaxaca. Sabino Canyon is in the Tehuacan-Cuicatlan Biosphere Reserve (Reserva de la Biosfera Tehuacan Cuicatlan), created in 1998, in central Mexico. The reserve spans 490,187 ha (1,211,278 ac) and is located within the Mixteca Oaxaqueña Province between the cities of Puebla and Orízaba. It is approximately 150 km (93 mi) southeast of Mexico City (
In 2001, this species was observed in two canyons within this reserve. In both ravines, 20 pairs were observed nesting (Salazar-Torres 2001, p. 18). Here, this species nests in the canyon cliff walls in crevices that can be as high as 250 m (820 ft). Between 2002 and 2004, approximately 100 individual military macaws were observed (Bonilla-Ruz et al. 2007a, p. 729). During 2007–2008, at least 67 birds were observed during the month of August (Rivera-Ortiz et al. 2008, p. 256; Rivera-Ortiz et al. 2006, p. 26). The known nesting site locations within the reserve increased from five to nine during the study period (Rivera-Ortiz et al. 2006, p. 28). Currently in the Sabino Canyon, the population of military macaws is thought to be between 90 and 100 individuals (Arizmendi 2008, p. 15).
This species exists in Mineral de Nuestra Señora de la Candelaria Ecological Preserve, 12 km (7.4 mi) southeast of the town of Cosala in Sinaloa, Mexico (Rubio et al. 2007, p. 52; Bonilla-Ruz et al. 2007b, p. 45). The preserve is 1,256 ha (3,104 ac) and consists of dry tropical forest. In 2002, this area was designated as a protected area by the State of Sinaloa Decree.
Between 2008 and 2009, it was observed at the Northern Jaguar Reserve in east-central Sonora, and was described as a rare summer resident there (Flesch 2009, pp. 5, 12). In this area, this species was recently observed in small flocks in cliff areas (Flesch 2008, pp. 35–36). In 2005, it was observed in the Río Aros canyon and upper Río Yaqui valley in an area known as the Yaqui Basin (O'Brien et al. 2006, pp. 4, 27–28). Flesch suggests that the species is likely to occur only in cliffs near stands of tropical vegetation (full citation 2008, p. 27).
Historically, in Mexico's eastern State of Tamaulipas, flocks of approximately 60 individuals were noted almost daily in the area of Gómez Farías, Mexico (Sutton and Pettingill 1942, p. 14). The Gómez Farías region is on the eastern slope of the Sierra Madre Oriental mountain range, known locally as the “Sierra de Guatemala.” This area is in the general vicinity of the state-protected El Cielo Biosphere Reserve, where this species is still known to occur (Arvin 2001, p. 8). The University of Texas at Brownsville maintains a research station, Rancho del Cielo, within the 145,687-hectare (360,000-acre) reserve. The research station supports locally driven scientific research and community development (University of Texas at Brownsville, unpaginated). Activities conducted by the research station have positive impacts on this species by attracting researchers and the birding community, preserving and protecting habitat, and creating awareness in the area.
There are populations in Manu Biosphere Reserve, Tambopata National Reserve, and Bahuaja Sonene National Park in Peru. The two latter parks border one another in the southern Peruvian Amazon region (ParksWatch 2002, p. 1). This species has been observed around the Pongo de Mainique of the Urubamba River and on the upper Tambopata River (Snyder et al. 2000, p. 125). According to a 2010 paper, it was observed in the Madre de Dios department in the southeastern Peruvian Amazon (Lee 2010, p. 14). Flocks of 40 to 50 individuals have been observed in Atalya at Madre de Dios (Snyder et al. 2000, p. 125). The species has been observed seasonally in small numbers in the area of the Huállaga River Canyon (JGP Consultants 2011 pp. 1, 5, 8).
Within Venezuela, it has been documented primarily within protected areas. In this country, little information about the species exists (Rodriguez et al. 2004, pp. 375–376). Here it persists in the Andes in the Central Coastal Cordillera and Sierra de Perijá (Rodriguez et al. 2004, pp. 375, 378, 379). It has been found on the north slopes of El Ávila, Guatopo, Henri Pittier National Park, the State of Cojedes, Cerro La Misión, and Sierra de Perijá National Park (Desenne and Strahl 1994 and Fernandez-Badillo et al. 1994 in Snyder et al. 2000, p. 125). A new population of this species was recorded at two localities at the Catatumbo-Barí National Park along the Colombian-Venezuelan border (Avendaño 2011, p. 2). Moist forests exist as four distinct enclaves within the Catatumbo Valley, in both northwestern Venezuela and northeastern Colombia. This extends the species' previously known range from the east slope of the Serranía de Perijá southwards (Avendaño 2011, p. 2).
According to several surveys, the military macaw exists in small populations ranging from a few pairs to approximately 100 individuals. It is found in protected areas in Mexico, Colombia, Bolivia, and to a lesser extent, in Ecuador, Peru, Venezuela, and Argentina (see Figure 1), and is unlikely to exist in small populations outside of protected areas where large expanses of suitable habitat still remain (Bonilla 2012, p. 9). The population in the Pilón Lajas Biosphere Reserve, Bolivia, may
There are various but imprecise population estimates for the military macaw. One report estimates the population to be fewer than 10,000 individuals (Arizmendi 2008, p. 3). BLI reports that the population is estimated to be between 10,000 and 19,999 mature individuals with a decreasing trend (BLI 2014, p. 2). We believe that the population is significantly fewer than 10,000 based on recent documented observations of this species, most of which are described in this status review. Researchers in Colombia agree with our conclusion (Botero–Delgadillo and Páez 2011, p. 13). Published literature (referenced in this document) has documented small flocks ranging from approximately 16 to 156 individuals distributed in disjunct locations in Mexico, Argentina, Ecuador, Venezuela, Peru, Colombia, and Bolivia. In situations where the species is rare or has small populations, the number of observations made per survey may be very small and the number of sites limited, and, therefore, estimates may not be accurate (Pollack 2006, p. 891).
The current total population number is unclear; however, based on these recent records, we believe that the population is between a few thousand and 10,000 remaining individuals (BLI 2014, p. 1; Bonilla 2012, p. 9).
There are various protections in place for this species at the international, national, and local levels. At the international level, this species is listed as vulnerable by the IUCN (2011). However, this status under IUCN conveys no actual protections to the species.
The military macaw is protected by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), which is one of the most important means of controlling international trade in animal and plant species affected by trade. CITES is an international agreement through which member countries, called Parties, work together to ensure that international trade in CITES-listed animals and plants is not detrimental to the survival of wild populations by regulating their import, export, and reexport. All of the range countries for this species are Parties to CITES (
The import of the military macaw into the United States is also regulated by the Wild Bird Conservation Act (WBCA) (16 U.S.C. 4901
This species is considered to be a critically endangered species by the Government of Argentina (Navarro et al. 2008, p. 1). It is protected through national legislation (Law 22.421 and Decree 691/81), administered by the Dirección Nacional de Fauna y Flora Silvestres. Law 22.421 addresses the Conservation of Fauna, enacted in 1981. Decree 691/81 addresses the protection and conservation of wild fauna and is implemented through law 22.421.
In Bolivia, this species is listed as vulnerable. The 1975 Law on Wildlife, National Parks, Hunting and Fishing (Decree Law No. 12,301 1975, pp. 1–34) has the fundamental objective of protecting the country's natural resources. This law governs the protection, management, utilization, transportation, and selling of wildlife and their products. It also governs the protection of endangered species, habitat conservation of fauna and flora, and the declaration of national parks, biological reserves, refuges, and wildlife sanctuaries.
Colombia categorizes this species as “vulnerable” (Salaman et al. 2009, p. 21). A vulnerable species is considered to be one that is not in imminent danger of extinction in the near future, but it could be if natural population trends continue downward and deterioration of its range continues (EcoLex 2002, p. 10).
In Ecuador, this species is considered endangered, “en peligro de extinción”. Here, this species is considered to be very rare (Arcos-Torres and Solano-Ugalde 2008, p. 69).
In Mexico, the military macaw is protected as endangered under Mexico's Wildlife Protection Act (Benetiz-Diaz 2012, p. 2) and has been highlighted as a priority species for conservation in the Mexican Parrot Conservation Plan (Rivera-Ortiz et al. 2008, p. 256; Renton 2004, p. 12). Its official list of endangered and threatened bird species is termed the Norma Oficial Mexicana 059 (NOM–059, 2010) (Benetiz-Diaz 2012, p. 2).
In Peru, this species is listed as vulnerable and its protections fall under the jurisdiction of the National Institute of Natural Resources (Instituto Nacional de Recursos Naturales, INRENA). Peru's Supreme Decree No. 034–2004–AG (2004, p. 276,855) prohibits hunting, take, transport, and trade of protected species, except as permitted by regulation.
In Venezuela, this species is listed as endangered (Rodriguez et al. 2004, p. 376).
In the 1980s, conservationists realized the value of identifying areas or habitat in terms of numbers of endemic bird species. BirdLife International, in partnership with countries, other nongovernmental organizations (NGOs), and various other partners, developed the Important Bird Area (IBA) program, which is a worldwide initiative to identify and protect critical areas for bird conservation. IBAs are areas that regularly contain significant numbers of one or more globally threatened species or other species of global conservation concern. One of the criteria in identifying important regions for bird conservation is the distribution of restricted-range and globally threatened species such as the military macaw. As of 2007, more than 8,500 IBAs had been identified worldwide (García-Moreno et al. 2007, p. 324). The military macaw is included in 37 of those IBAs (BLI 2011b, pers. comm.). Note that this does not mean this species always occupies those areas; rather, the species has been identified in those areas.
A number of locally based and international conservation organizations have developed programs in connection with protected areas within this species' range, such as ecotourism, to observe clay lick areas (Lee 2010, pp. 167–168). The Wildlife Conservation Society (WCS) is implementing a range of projects aimed at strengthening the management of Greater Madidi-Tambopata Landscape in Bolivia. Its program is based on three main categories: (1) Park management, (2) natural resources management, and (3) scientific research (Parks Watch 2005, pp. 2–3). The Greater Madidi-Tambopata Landscape, where the WCS is monitoring populations of the military macaw (WCS 2009, pp. 2, 8), encompasses one of the largest swaths of intact montane forest in the Tropical Andes in northern Bolivia and southern Peru. The GMTL is 110,074 km
A Colombian-based NGO, Fundación ProAves, is also working to protect this species and its habitats. Fundación ProAves developed a conservation plan for 2010 to 2020 for several parrot species, including the military macaw (Botero-Delgadillo and Páez 2011, p. 7). However, it is unclear if or when it will be adopted by the Government of Colombia.
In Mexico, several NGOs are participating in the conservation and management of this species. In 1989, a strong citizen movement began to conserve the 383,567-ha (947,815-ac) Sierra Gorda Biosphere Reserve by establishing the local group, Grupo Ecológico Sierra Gorda. In collaboration with the local community, this group has taken action to protect bird communities as well as other groups of wildlife in this area. Strategies include environmental education, establishment of private reserves, and payment for environmental services in a 25,000-ha (61,776-ac) area of this reserve (Pedraza-Ruiz, 2008 p. 1). The Chamela-Cuixmala Biosphere Reserve is managed by Mexico's Instituto de Ecologia of the National Autonomous University of Mexico (UNAM) and local NGOs. Other NGOs are working with communities to obtain macaw feathers from aviaries so that indigenous people will not hunt the macaws for their feathers (Renton 2004, p. 14). In the Sinaloa area, the Universidad Autónoma de Sinaloa has been active in conservation of this species since 1998 (Rubio et al. 2007, p. 52). This university conducts research outreach activities to foster knowledge, and conservation of this species at the Mineral de Nuestra Señora de la Candelaria Ecological Preserve.
Section 4 of the ESA (16 U.S.C. 1533) and implementing regulations (50 CFR 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the ESA, a species may be determined to be endangered or threatened based on any of the following five factors:
Throughout the range of this species, the factors impacting this species are generally very similar. The primary factors affecting the military macaw are habitat loss and degradation, and poaching (Carrillo et al. 2013, p. 46; Gastañaga et al. 2011, entire; Strewe and Navarro 2004, p. 50). Habitat loss is primarily due to conversion of the species' habitat (generally forests) to agriculture and other forms that are not optimal for the military macaw (Donald et al. 2010, p. 26; Flórez and Sierra 2004, p. 3). Conversion of habitat to soy plantations is now considered to be one of the principal causes of Amazon deforestation (Bonilha 2008, p. 17). Because this species has a small and fragmented population, poaching, while apparently uncommon, remains a concern (Botero-Delgadillo and Páez 2011, p. 13).
We focus primarily on where this species has been documented, particularly in parks and other areas with protected status and the peripheral zones. In some cases, we will evaluate the factor by country. In other cases, we may evaluate the factor by a broader region if we do not have adequate information specific to a particular country about this species. This is because often the threats are the same or very similar throughout the species' range.
The military macaw has a large but fragmented distribution (276,000 km
Currently, the military macaw exists in many parks and other areas that have protected status (Marín-Togo et al. 2012, p. 465; Coconier et al. 2009, p. 63; Arizmendi 2008, p. 4; Rodriguez et al. 2004, p. 78; Renton 2004, p. 12). Studies have found that, compared with the surrounding areas, conditions inside parks were significantly better than their surrounding counterparts (Bruner et al. 2001, p. 125). One study found that, in 40 percent of tropical parks, land that had formerly been under cultivation and that was incorporated into park boundaries had recovered. This subsequently led to an increase in vegetative cover. The study found that
We are limiting our analysis to areas where there is information available about this species. For instance, there is very little information available about this species in Argentina and Venezuela (Coconier et al. 2009, p. 63; Navarro et al. 2008, p. 1; Coconier et al. 2007, p. 52; Rodriguez et al. 2004, pp. 378–379). However, in both of these countries, the species faces similar threats (such as the lack of suitable habitat) as in other countries (Rodriguez et al. 2004, p. 373). The largest populations of this species, discussed in detail in the Range, Observations, and Population Estimates section, appear to be in Mexico and Bolivia. Even in these countries, its populations are small and fragmented. In other countries within its range such as Colombia, Peru, and Ecuador, it exists in smaller populations, and Argentina (Nores and Yzurieta 1994, pp. 315–316) and Venezuela have even smaller and possibly negligible populations. Additionally, the military macaw may have occurred in Guatemala in the past, but it is no longer found there (Gardner 1972 in Snyder et al. 2000, p. 125).
In Argentina, habitat destruction, particularly deforestation for agricultural expansion for soy plantations, and timber extraction had significantly increased as of 2009 (Devenish 2009, p. 60; Chebez et al.
In addition, pipeline routes and associated roads are being established in this area in connection with oil, gas, and mineral exploration (Navarro et al. 2008, pp. 7, 9). Road building operations greatly facilitate access to large, previously inaccessible forested areas (Fimbel et al. 2001, pp. 511–512). The area occupied by permanent facilities including pipelines and refineries is relatively small, but oil development areas cover large tracts of land. Oil development can have significant negative impacts on nearby habitat through construction of roads and other buildings, discharge of contaminants, and oil spills and leaks (Gay et al undated, pp. 2–6).
Although some of this species' habitat is protected, its habitat continues to shrink in Argentina. In the area of Acambuco, where the military macaw has been observed, the designation of Acambuco Reserve as a provincial reserve provides some protective measures. The purposes of this reserve, in part, are to preserve its genetic resources, to preserve the environment surrounding catch basins of its rivers, and to guarantee the maintenance of the biodiversity living in the reserve. However, in the Salta Province, this species is primarily found in areas that are unprotected, with the exception of the Acambuco Reserve (Navarro et al. 2008, pp. 1, 7, 9). In summary, significant amounts of this species' habitat have been converted such that its habitat is no longer suitable, and these causes of habitat loss are likely to continue.
Madidi National Park experiences threats that are representative of threats to this species' habitat in Bolivia. The park is one of the key areas where this species likely has a viable population in Bolivia. Thus, we focused our analysis on this park. The National Service of Protected Areas (SERNAP) has authority over Bolivia's parks and protected lands. Approximately 53 percent (57.2 million ha; 141.3 million ac) of Bolivia's total area is forested (FAO 2010, p. 228). Of this area, 38.9 million ha (96.1 million ac) are within the Bolivian Amazon and constitute 5 percent of the total Amazon forest (Locklin and Haack 2003, p. 774). As of 2005, Bolivia had 12 national parks, including 6 with integrated management natural areas, 1 with indigenous territory (or communal lands), and 4 national reserves; 2 biosphere reserves; and 3 integrated management natural areas, totaling 16,834,380 ha (41,598,659 ac) (ParksWatch 2005, p. 2). A discussion of typical threats in Bolivia's parks follows. The region suffers from chronic and intense poverty levels, which affect more than 90 percent of the population (Instituto Nacional de Estadística de Bolivia (INE) 2005). The result is intense conflict between development and conservation. In Madidi National Park, the three greatest threats to the nature preserve are the construction of a highway within the park, drilling for oil, and a planned hydroelectric dam. Other activities that are impacting or are likely to impact this park are illegal logging, gold mining, and uncontrolled tourism (ParksWatch 2011b, pp. 1–15; Chavez 2010, pp. 1–2).
The forests of Bolivia have mainly been subjected to selective logging (Salo and Toivonen 2009, p. 610; Fredericksen 2003, p. 10), which has been done at very low levels and with low human pressures (Pacheco 2006, p. 206), allowing them so far to remain largely intact. In the five national parks where the military macaw is regularly observed, there are some protections in place for the species' habitat (Hennessey 2011, pers. comm.). However, logging still occurs within the range of this species (ParksWatch 2011b, p. 1). Large tracts of primary forest remain in Bolivia, but it is likely that some of these will be subjected to logging (Fredericksen 2003, p. 13) due to slash-and-burn activities by indigenous communities, and because forest products are one of Bolivia's primary exports (Byers and Israel 2008, p. vi). The use of slash-and-burn practices on steep and erodible slopes has considerably affected the area's hydrological regime, particularly near the city of Santa Cruz. In many areas of human settlement, soil erosion is compounded by logging, nutrient depletion, and weed invasion.
As of 2006, 89 timber companies held the rights to 5.8 million ha (14.3 million ac) of logging concessions (Pacheco 2006, p. 208). The Bolivian Forestry Law of 1996 (Forestry Law 1700)
There are increasing demands for road infrastructure within Bolivia for many reasons. It is one of the poorest countries in South America (MacLeod 2009, p. 6; INE 2005), and the government would like to improve its economy (ParksWatch 2011b, p. 13). The construction of the Apolo-Ixiamas Road is one way of facilitating access to its natural resources. A road has been proposed that would bisect the Madidi National Park and Natural Integrated Management Area, opening vast, currently inaccessible tropical forest areas to colonization and resource extraction (ParksWatch 2011b, pp. 1–2). This can promote illegal logging, and facilitate access to previously inaccessible forested areas (Fimbel et al. 2001, pp. 511–512). The construction of roads through this park has been a source of controversy for several years
Possibly one of the greatest threats in the Madidi National Park is the proposed Bala Hydroelectric Dam Project at the Beni River in the Bala Gorge, where the Beni River goes through the Bala Mountain Range. The Bala Hydroelectric Dam, as proposed, could flood much of Madidi National Park and the adjacent biosphere reserve and indigenous territory Pilón Lajas, which is an area of about 2,000 km
In Madidi National Park, there is limited legal hunting, but in the areas surveyed, this species was described as common and not exploited (Hosner et al. 2009, p. 226). Nine villages or communities are within the national park, and 22 are in the integrated management natural area. Of the 31 communities, 3 are located in the Andean plateau zone. In the lowlands, two of the communities occupy the zone of valleys around the municipality of Apolo. Timber extraction occurs here (WorldLand Trust 2010, p. 1). In 2010, an additional 25,090 ha (62,000 ac) of pristine tropical rainforest in Bolivia were protected, following a decision by an indigenous community to create a tourism refuge in the Sadiri rainforest (WorldLand Trust 2010, p. 6). Landless Andean farmers make a living in the lowlands, and they at times expand the agricultural frontier, increasing the risk of disease transmission between domestic animals and wildlife, bringing crops and domestic animals closer to wildlife predators, and increasing hunting pressure in surrounding forests (WCS 2009, p. 4).
In summary, threats to the species' habitat in Bolivia include unsustainable land use practices, illegal logging, road building, and exploration activities for oil extraction, which are contributing to the erosion of Bolivia's ecosystems (MacLeod 2009, p. 6; ParksWatch 2005, p. 1). Large tracts of primary forest remain in Bolivia, but it is likely that many of these will be subjected to logging and other pressures, such as extraction of non-timber forest products, particularly because forest products contribute to Bolivia's national exports (Byers and Israel 2008, p. vi). The Government of Bolivia is attempting to balance improving its economy with conservation initiatives, and some of its development initiatives may negatively impact this species' habitat. Despite protections in place, this species' habitat in Bolivia continues to experience these threats, and we expect these pressures to continue into the future.
In the past, human colonization, development, and exploration within the range of the species in Colombia were limited due to the exceptionally steep and high terrain of the Andes (Salaman et al. 2002, p. 160). However, researchers reported in 2004 that the Cauca River Canyon in northeastern Colombia, an area containing military macaws, was extensively deforested (Floréz and Sierra 2004, p. 3). The main threats in the lowlands are the expansion of agriculture, particularly by small farmers in the middle altitude areas, and extractive activities such as hunting (including the removal of birds to sell as pets) and wood harvesting (Salaman et al. 2007, p. 89). As resources become scarcer in the lowlands, these pressures move upland. Associated with these farming practices is the use of livestock and the erosion caused by livestock grazing on steep slopes, as well as erosion due to cultivation.
A 2010 report indicated that forest cover was largely continuous in Colombia, but deforestation had increased dramatically as of 2010 (FAO 2010, pp. 22, 106). Deforestation rates in lowland moist forest on the foothills of the eastern Andes of Colombia are rapidly accelerating. Deforestation has increased from 1.4 percent (1961–1979) to 4.4 percent (1979–1988), and is correlated with increasing human population density (Salaman et al. 2007, p. 89; Viña and Cavelier 1999, p. 31). Primary forest habitats throughout Colombia have undergone extensive deforestation. Viña et al. (2004, pp. 123–124) used satellite imagery to analyze deforestation rates and patterns along the Colombian-Ecuadorian border (in the Departments of Putumayo and Sucumbios, respectively), finding that between 1973 and 1996, a total of 829
Since the 1970s, the Colombian Government has encouraged road construction and colonization projects. The goal is to create links to the vast and undeveloped Amazonian region, and to open up the Llanos and Amazonian lowlands for utilization of their natural resources (Salaman et al. 2007, pp. 10, 89; Salaman et al. 2002, p. 160). In recent years, this species' habitat has come under increased pressure with the completion of the Mocoa-Bogotá highway, the proposed Puerto Asís-Florencia road, and the discovery and exploitation of petroleum and precious metals. All of these factors contribute to an escalation in human encroachment and associated impacts that degrade this species' habitat (Salaman et al. 2007, p. 10). The few remaining forest connections between the upper and lower slopes are under pressure, even where they are minimally protected.
Five main routes link the lowlands from Colombia's high Andean interior to other areas. Infrastructure development on the eastern slope of the Andes in Colombia, as well as adjacent Ecuador, has also caused significant human population pressures and has led to much habitat degradation. Increased and improved access roads have led to the conversion of mature tropical forests for pasture lands, petroleum products exploitation, and coca plantations (Salaman et al. 2007, p. 89). These road projects to link Colombia with Venezuela and Ecuador along the entire eastern base of the Andes have contributed to additional deforestation.
Currently, the Serranía de los Churumbelos forest is almost entirely intact and is owned by the government (Salaman et al. 2007, pp. 10, 91–92). This mountain range has largely avoided the degree of human impact that other regions have suffered. However, this is changing rapidly due to mineral exploration (petroleum and precious metals) and natural resources (timber and rich organic soils for agriculture) demands. The Serranía de los Churumbelos could become the focus of large-scale deforestation and colonization in the near future (Salaman et al. 2007, p. 89). Parque Natural Nacional Cueva de los Guácharos provides some protection to the forests in this region although it is a small park (approximately 5,000 ha or 12,355 ac), and even here, illegal encroachment occurs (Salaman et al. 2007, p. 89).
The primary threat in the Catatumbo-Barí National Park (at the Colombian-Venezuelan border) is deforestation and impacts associated with coca plantations surrounding the Park (Fundación ProAves 2011, pp. 28–29). Coca cultivation has fluctuated for several years. Over a 4-year study period, it contained about 100 ha (247 ac) of coca (United Nations Office on Drugs and Crime, undated report, p. 33). A new population of this species was recently recorded at two locations in this park (Avendaño 2011 in BLI 2014a, p. 2). In addition, one population in the Cauca valley (fewer than 50 mature birds) could be affected by the construction of a dam (155 m (508.5 ft) in height) that could affect its sole breeding cliff. However, the status of the dam is still unclear (American Bird Conservancy 2012, p. 24).
Ecuador experiences one of the highest deforestation rates in South America (Mosandl et al. 2008, p. 37). Forested habitat within many parts of Ecuador has diminished rapidly due to logging, clearing for agriculture, and road development (Youth 2009, pp. 1–3; Mosandl et al. 2008, p. 37; Sierra 1999, p. 136; Dodson and Gentry 1991, pp. 283–293). Between the years 1990 and 2005, Ecuador lost a total of 2.96 million ha (7.31 million ac) of primary forest, which represents a 16.7 percent deforestation rate, and a total loss of 21.5 percent of forested habitat since 1990 (Butler 2006b, pp. 1–3; FAO 2003b, p. 1). Much of the primary moist forest habitat has been replaced with pastures and scattered trees (Collar et al. 1992, p. 533). Very little suitable habitat now remains for the species here, and remaining suitable habitat is highly fragmented (Bass et al. 2010, p. 2; Snyder et al. 2000, p. 122). In the area where this species exists, near the Gran Sumaco Biosphere Reserve, there are several oil reserves (Celi-Sangurima 2005, p. 22). However, specific impacts to this species as a result of oil exploration or extraction activities are unknown.
The colony in Kichwa River Reserve is currently in an area designated as protected, although it is unclear what these protections entail. In this area, the local community group Macaw Rio is interested in conducting ecotourism. Although this colony has persisted for about 150 years (Huatatoca pers comm. in Arcos-Torres and Solano-Ugalde 2008, p. 72), it likely will be affected by logging and the resulting deforestation on nearby land. Researchers suggest that the apparent lack of this species in Ecuador is possibly related to lack of suitable sites for the formation of breeding colonies, or lack of knowledge about sites that may be located in inaccessible areas (Arcos-Torres and Solano-Ugalde 2008, p. 72). We know of no specific threats to the species in the Kichwa River Reserve, other than those associated with small population sizes, which is discussed under Small Population Size, below.
Mexico has suffered extensive deforestation (conversion of forest to other land uses) and forest degradation (reduction in forest biomass through selective cutting, etc.) over the past several decades (Commission for Environmental Cooperation (CEC) 2010, pp. 45, 75). In recent decades, Mexico's deforestation has been rapid (Blaser et al. 2011, pp. 343–344). Between 1990 and 2000, Mexico lost forest (factoring in natural regeneration of degraded forest and planting of forest in areas that previously did not have forest) at a net rate of 344,000 ha (850,043 ac) per year (FAO 2010, p. 21). During 1990–2010, Mexico lost approximately 6 million ha (15 million ac) of forest, and had one of the largest decreases in primary forests worldwide (FAO 2010, pp. 56, 233). Although Mexico's rate of forest loss has slowed in the past decade, it still continues. The current rate of net forest loss in Mexico is 155,000 ha (383,013 ac) per year, with an estimated 250,000–300,000 ha (617,763–741,316 ac) per year degraded (Government of Mexico (GOM) 2010b, in Blaser et al. 2011, p. 344; FAO 2010, p. 233).
As of 2010, Mexico had 64.8 million ha (160.1 million ac) of forest (Food and Agriculture Organization (FAO) 2010, p. 228), and 50 percent of these forests are considered degraded. Projections of lost forested area by the year 2030 in Mexico are between 10 percent to nearly 60 percent of mature forests lost, and approximately 0 to 54 percent of regrowth forests lost (CEC 2010, pp. 45, 75). Deforestation via forest conversion to agricultural uses remains a major driver of land transformation in Mexico (CEC 2008, p. 24). Agricultural production is projected to double within the country by 2030 (CEC 2010, pp. 34, 70). Although some of this increase in production is expected due to an increase in productivity on previously converted land, total agricultural land area in Mexico is projected to increase by 6,300 to 41,400 ha (15,568 to 102,302 ac) by 2030 (CEC 2010, p. 75).
In the range of the military macaw, such as the tropical forest along the Pacific coast of Mexico, high rates of deforestation have occurred; slash-and-burn agriculture still occurs along with grazing. In 2002, it was estimated that the species had suffered a 23 percent habitat loss within its range in Mexico using a Genetic Algorithm for Rule-set Prediction (GARP) analysis tool (Ríos-Muñoz 2002, pp. 24, 32). GARP analysis essentially uses ecological characteristics of known species locations in order to determine its likely distribution.
A 3-year study documented loss of habitat, particularly trees used by macaws, in the Tehuacan-Cuicatlan Biosphere Reserve, Sabino Canyon. In their study, researchers found a total of 170 individual plants of species consumed by military macaws in the pine forests in an area of 1,500 m
At the Mineral de Nuestra Señora reserve in Cósala, where this species occurs, mining activities are occurring (Rubio et al. 2007, p. 52; Bonilla-Ruz et al. 2007b, p. 45). This reserve is 12 km (7.5 mi) southeast of Cósala in Sinaloa, Mexico. This reserve was created after a joint effort in 1999 between the state, municipal government, and the Autonomous University of Sinaloa. The Autonomous University of Sinaloa conducted technical studies to propose the area as a nature reserve. The university also conducted conservation projects here which focused on the “Ecology and Conservation of the Military Macaw” and “Environmental Education and Ecotourism.” In 2002, the Mineral de Nuestra Señora reserve was formally designated. Since then, parrot populations and their habitat here both within and outside the preserve have been affected by mining activities taking place in the area (Rubio et al. 2007, p. 52). In early 2005, mining efforts began on underground development and drilling (Scorpio Mining 2011, p. 2). The current effect of mining on the species is unclear.
There is little to no current published information with respect to specific threats to this species in Peru (Gastañaga et al. 2011, entire; JGP Consultants 2011, entire; Lee 2010, entire; Cowen 2009, entire; Terborgh 2004, entire; Brightsmith 2004, entire). It exists in several parks that convey some measures of protection (Oliveira et al. 2007, p. 1,235; Terborgh 2004, p. 35). Peru's protected areas are managed by the General Department of Natural Protected Areas, INRENA, under the authority of Law No. 26834, Law of Natural Protected Areas, promulgated in 1997. The Peruvian national protected area system includes several categories of habitat protection. Habitat may be designated as any of the following:
(1) Parque Nacional (National Park, an area managed mainly for ecosystem conservation and recreation);
(2) Santuario (Sanctuary, for the preservation of sites of notable natural or historical importance);
(3) Reserva Nacional (National Reserve, for sustainable extraction of certain biological resources);
(4) Bosque de Protección (Protection Forest, to safeguard soils and forests, especially for watershed conservation);
(5) Zona Reservada (Reserved Zone, for temporary protection while further study is under way to determine their importance);
(6) Bosque Nacional (National Forest, to be managed for utilization);
(7) Reserva Comunal (Communal Reserve, for local area use and management, with national oversight); and
(8) Cotos de Caza (Hunting Reserve, for local use and management, with national oversight) (BLI 2008, p. 1; Rodríguez and Young 2000, p. 330).
Because the designations of national parks, sanctuaries, and protection forests are established by supreme decree that supersedes all other legal claim to the land, these areas tend to provide more habitat protection than other designations. All other protected areas are established by supreme resolution, which is viewed as a less powerful form of protection (Rodríguez and Young 2000, p. 330).
This species has been documented in the Tambopata National Reserve, which is a 275,000-ha (679,540-ac) conservation area created by the Peruvian Government in 1990. The main purpose was to protect the watersheds of the Tambopata and Candamo Rivers. This area protects some of the last pristine lowland and premontane tropical humid forests in the Amazon. Within the Tambopata National Reserve, there have been isolated human settlements along stretches of the Malinowski River, which flows into the Tambopata River. Fewer than 5,000 people inhabit the Tambopata National Reserve's border area to the north. They make a living of slash-and-burn agriculture, small-scale gold mining, timber extraction, and hunting and fishing. One area of Tambopata, including a buffer zone, was recently described as a “crisis zone” (Lee 2010, p. 169). It has been described as being at high risk for illegal settlement, timber extraction, and mining (Lee 2010, p. 169).
Populations of this species are thought to be in the Manu Biosphere Reserve and the Bahuaja Sonene National Park in Peru (WCS 2007, p. 1; Herzog
There is little published information about the military macaw in Venezuela (BLI 2014, pp. 1–2; Rodriguez 2004, entire). Here it exists in the Andes in the Central Coastal Cordillera, and Sierra de Perijá (Rodriguez et al. 2004, pp. 375, 378, 379). It has been found on the north slopes of El Ávila, Guatopo, Henri Pittier National Park, Ceroo La Mision, and Sierra de Perijá National Park (Desenne and Strahl 1994 in Snyder et al. 2000, p. 125; Fernandez-Badillo et al. 1994 in Snyder et al. 2000 p. 125). Most of its range in Venezuela is within protected areas, but as of 2000, threats still were reported to exist in the protected areas (Snyder et al. 2000, p. 125). In 2000, Snyder et al. noted that Sierra de Perijá was being deforested for narcotics, land speculation, and cattle (p. 125). A population of this species was recorded for the first time at two localities at the Catatumbo-Barí National Park in the Colombian-Venezuelan border, extending the previous species' range from the east slope of the Serranía de Perijá southwards (Avendaño 2011, p. 2).
Habitat loss, human encroachment, and conversion to agriculture are the main threats acting on the species throughout its range. These threats are exacerbated by an inability by range country governments to adequately manage and monitor the species (see discussion under Factor D, below). South America had the largest net loss of forest area of all continents between 2000 and 2005 (Mosandl et al. 2008, p. 38), with a net loss of 4.3 million ha per year. Although specific, detailed information about this species' remaining occupied habitat status is not available for each country, we know that much of this species' habitat has been lost through conversion of land to farming, forestry, or other activities (Bonilha and Switkes 2008, p. 17; Etter et al. 2006, p. 369; Renton 2004, p. 13). Conversion of habitat to soy plantations is now considered to be one of the principal causes of Amazon deforestation. Deforestation may already have destroyed as much as 1.2 million ha (3 million ac) in the Amazon. This, combined with pressures of capture for the pet trade, has severely impacted the wild population of military macaws. Studies have shown that, over time, resident bird diversity generally declines as remaining forest becomes smaller and more fragmented (Turner 1996, pp. 202, 206).
As with most parrots, the military macaw requires large areas of suitable habitat, including large trees or other nesting cavities for nesting, feeding, and roosting as well as food sources. Deforestation and logging is a common form of habitat loss that affects this species (Benetiz-Diaz 2012, p. 4; Ríos-Muñoz et al. 2009, pp. 502–505). Deforestation via conversion of land to agricultural use is a threat to military macaws because it directly eliminates forest habitat, removing the trees that support the species' nesting, roosting, and dietary requirements. It also results in fragmented habitat that isolates military macaw populations, potentially compromising the genetics of these populations through inbreeding depression and genetic drift (Lande 1995, pp. 787–789; Gilpin and Soulé 1986, p. 27). We do not know the exact extent of deforestation in the range of the military macaw. However, the best available information indicates that deforestation continues to occur and affect the species throughout its range, despite protections that are in place.
Currently the population of military macaws is extremely small (likely a few thousand individuals), those populations are severely fragmented, and its suitable habitat is becoming increasingly more scarce. Therefore, based on the best available scientific and commercial information, we find that the present or threatened destruction, modification, or curtailment of habitat or range is a threat to the military macaw now and in the future.
The trade in wild parrots is common in some areas of South America (Gastañaga et al. 2011, entire; Cantú–Guzmán et al. 2008, entire). In its Red List assessment, the IUCN indicates that the two major threats to the military macaw are habitat loss and capture for the domestic pet trade (IUCN 2011, p. 1). Many reports indicate that poaching for the pet trade is still a problem for parrot species, particularly in poorer countries (Herrera and Hennessey 2007, entire; Dickson 2005, p. 548). For perspective, in the United States, captive-bred specimens of this species were recently found offered for sale for $699 (Basile 2010, p. 2). In 2006, four military macaws were advertised for sale with an average sale price of $850 (Cantú–Guzmán et al. 2008, p. 72). Although the scope of the illegal trade in the military macaw is unknown, poaching can be a lucrative and relatively risk-free source of income (Dickson 2005, p. 548).
A high percentage of birds die during the process of capturing from the wild, transporting, and selling them. Because most of these activities are illegal, it is difficult to accurately determine the actual mortality rate, but estimates vary between 31 and 90 percent (Weston and Memon 2009, p. 79; Cantú-Guzmán et al. 2007, pp. 7, 20, 22, 55, 60). Military macaws mate for life, are long-lived, and have low reproductive rates. These traits make them particularly sensitive to the impacts of their removal from the wild (Lee 2010, p. 3; Thiollay 2005, p. 1,121; Wright et al. 2001, p. 711). Wild harvest can destroy pair bonds, remove potentially reproductive adults from the breeding pool, and have a significant effect on small populations (Kramer and Drake 2010, p. 11). These activities adversely affect a species' population numbers (Pain et al. 2006, p. 322).
Although poaching continues to occur for the pet trade, it has been found to be significantly lower at protected sites (Pain et al. 2006, pp. 322–328; Wright et al. 2002, p. 719). Other reports have found that national or local protection, particularly when local communities are actively involved in conservation efforts, can successfully reduce nest take (Pain et al. 2006, p. 328; Chassot et al. 2006, pp. 86–87). Gonzalez (2003, pp. 437–446) found evidence of poaching, particularly during nesting seasons, in the Pacaya-Samiria National Reserve, a protected area in the Loreto Department, Peru, during his 1996–1999 study. However, he also found that poaching decreased during the 1998 harvest season (Gonzalez 2003, p. 444), which he attributed to increased numbers of birds confiscated by regional authorities, which may have subsequently discouraged poaching (also see Factor D, below).
A related factor is the destruction of trees in this species' habitat due to poaching. This species primarily depends on tree-cavity nests as its habitat. Not only does nest poaching negatively affect this species by reducing the population size and the number of birds available to reproduce, it also in some cases destroys this species' habitat. Several studies have found that poachers will cut down trees to remove nests. A study conducted in the late 1990s found that in some cases
The military macaw was listed in CITES Appendix II, effective June 6, 1981, and was transferred to CITES Appendix I, effective October 22, 1987. Most of the international trade in military macaw specimens consists of live birds. Data obtained from the United Nations Environment Programme—World Conservation Monitoring Center (UNEP–WCMC) CITES Trade Database show that, during the nearly 6
During the more than 25 years following the transfer to Appendix I (October 22, 1987 through December 31, 2012, the last year for which complete data were available at the time the following numbers were compiled, the UNEP–WCMC database shows a total of 1,894 military macaw specimens as (gross) exports, including 1,455 live birds, 224 scientific specimens, 213 feathers, 1 body, and 1 trophy (UNEP–WCMC trade database, accessed May 20, 2014). As noted above, it appears that some records may be over-counts due to differences in the manner in which the importing and exporting countries reported their trade. It is likely that the actual number of live military macaws in international trade during the 25-year period was 1,301. Of those 1,301 birds, 1,022 were captive-bred or captive-born, and 119 were reported as wild. The source of the remaining live birds is unknown. Exports from range countries included: 54 live birds from Mexico; 10 from Argentina; 4 from Venezuela; 2 from Colombia; and 1 from Peru. Annual quantities exported ranged from a low of 14 live birds during 2006, to 122 live birds (including 80 exported from South Africa) in 2009. Since 2004, none of the exports from range countries has been reported as wild origin.
In Argentina, Ecuador, and Venezuela, there is little to no information available about overutilization. International trade has diminished, but local trade continues to occur. In Bolivia, a report published in 2009 indicated that of 17,609 birds (including military macaws) documented in the market studied in Department of Santa Cruz (not far from the range of this species), 64 percent of the birds were found to be adults captured in the wild. Ninety percent (24,707) of the birds were found to be from the Department of Santa Cruz. A total of 2,604 individuals were from the Department of Tarija, 176 from the Department of Beni, 20 from Peru, and 12 from Brazil (Herrera and Hennessey 2009, p. 233). The report indicated that most parrots (some of which were military macaws) were locally sold, and found that 23,306 were in the city of Santa Cruz, and 4,156 were sent to Cochabamba.
In Mexico, the military macaw is reportedly one of the most sought-after species in the illegal pet bird trade (Cantú-Guzmán et al. 2007, p. 38), and poaching remains a concern. In 1995–2005, it was the fifth most seized Mexican psittacine species by Mexico's Environmental Enforcement Agency, becoming the fourth most seized psittacine species in 2007–2010 (p. 52). As an example, at a sinkhole in El Cielo Biosphere Reserve, a population of approximately 50 birds was decimated by poaching in the 1980s (Aragón-Tapia
Local residents in Argentina indicated that young chicks are removed “for foreigners” but also noted that it is extremely difficult due to the difficulty in accessing the species' preferred nesting sites and the aggressiveness of the macaws (Navarro et al. 2008, pp. 7, 9). Additionally, in Mexico and Ecuador, indigenous communities have used military macaw feathers for ceremonial and medicinal practices. However, NGOs are working with these communities to obtain macaw feathers from aviaries so that the indigenous people will not hunt the macaws (Renton 2004, p. 14).
This species and other
A recent study in Peru examined nest poaching and illegal trade of parrots, including the reasons for poaching, and the methods, seasons, and locations where the sale and actual poaching of parrots occurred. This study found that this species is still being poached in the wild (Gastañaga et al. 2011, pp. 79–80), even in protected areas and despite national protections in place. During the 2007–2008 study, eight military macaws were found for sale in two out of eight markets surveyed in Peru (p. 79). Seven of these birds were found in the Amazonian lowland city, Pucallpa (p. 80). The study also found that, where protections and enforcement have been implemented such as in Cusco, there were no parrots for sale in markets. This
Among birds, parrots are the group most subject to commercial trade (Hutton et al. 2000, p. 14). Parrots have suffered a disproportionate number of extinctions, in part due to their desirability as pets. Conservation efforts by the various entities working to ensure long-term conservation of the military macaw may result in its population slowly increasing; however, it is likely that the population is still declining. Even though the military macaw is listed as an Appendix-I species under CITES and laws have been established within the range countries to protect this species, we are still concerned about the illegal capture of this species in the wild. Despite regulatory mechanisms in place and restricted international trade, poaching is lucrative and continues to occur. Additionally, because each population of military macaws is small, with usually fewer than 100 individuals, poaching is likely to have a significant effect on the species. Based on the best available scientific and commercial information, we find that overutilization for commercial, recreational, scientific, or educational purposes is a threat to the military macaw throughout its range.
Studies of macaws indicate that this species is susceptible to many bacterial, parasitic, and viral diseases, particularly in captive environments (Kistler et al. 2009, p. 2,176; Portaels et al. 1996, p. 319; Bennett et al. 1991). Viral diseases seem to be more prevalent and subsequently more studied in parrots than bacteria and parasites. Psittacines are prone to many viral infections such as retrovirus, pox virus, and paramyxo virus, and captive-held birds seem particularly susceptible (Gaskin 1989, pp. 249, 251, 252). A highly fatal disease, Pacheco's parrot disease, is also caused by a virus (Simpson et al. 1976, p. 218). After infection from this virus, death occurs suddenly without apparent sign of sickness other than some mild nasal discharge and lethargy (Simpson et al. 1976, p. 211). However, as transmission of this disease is mainly through nasal discharge and feces, it is less likely to happen in open habitat in the wild than in a confined aviary, particularly because in the wild this species has been observed to alternate nest sites based on food availability (Chosset
We have no evidence of significant adverse impacts to wild populations of military macaws due to disease. Disease is a normal occurrence within wild populations. There is no indication that disease occurs to an extent that it is a threat. Based on the best available scientific and commercial information, we find that disease is not a threat to the military macaw in any portion of its range now or in the future.
Eggs and chicks are more susceptible to predation than adult macaws (Arizmendi 2008, p. 44). Chicks and eggs are particularly susceptible to predation by snakes (Arizmendi 2008, p. 44), but military macaws select their nests where they are likely to have a high level of reproductive success. Because military macaws generally construct their nests in high locations such as canyon cliffs, snake predation is less of a concern because snakes need tree canopy or vines to climb in order to gain access to eggs and chicks.
Other predators known to consume this species' eggs include iguanas, red-tailed hawks (
Diseases associated with military macaws in the wild are not well documented. Although there is evidence that diseases occur in parrots in the wild, we found no information that diseases affect this species to the degree that they are negatively impacting this species in the wild. Because the populations are distributed across such a large area, these populations have resiliency against impacts from disease if one population is affected by a disease outbreak. Conversely, although disease in the wild is not a concern, predation does remain a concern; there is evidence that predation on this species occurs often enough that it can have a significant impact. Because of the species' small and declining population size, tendency to mate for life, low reproductive capacity, and existence in isolated habitat fragments, even minimal predation renders the species more vulnerable to local extirpations. Therefore, we find that predation, compounded by ongoing habitat loss and poaching, is a threat to the military macaw.
Regulatory mechanisms to protect a species could potentially fall under categories such as regulation of trade, wildlife management, parks
A specimen of a CITES-listed species may be imported into or exported (or reexported) from a country only if the appropriate permit or certificate has been obtained prior to the international trade and it is presented for clearance at the port of entry or exit. The Conference of the Parties (CoP), which is the decisionmaking body of the Convention and comprises all its member countries, has agreed on a set of biological and trade criteria to help determine whether a species should be included in Appendix I or II. The military macaw is listed in Appendix I. For Appendix-I species, both an export permit (or reexport certificate) must be issued by the country of export and an import permit from the country of import must be obtained prior to international trade. An export permit for species listed in either Appendix I or II may only be issued if the country of export determines that:
• The export will not be detrimental to the survival of the species in the wild (CITES Article III(2) and Article IV(2));
• The specimen was legally obtained according to the animal and plant protection laws in the country of export;
• For live animals or plants, they are prepared and shipped for export to minimize any risk of injury, damage to health, or cruel treatment; and
• For Appendix I species, an import permit has been granted by the importing country.
Except in certain cases, such as specific scenarios for approved captive-breeding programs, the import of an Appendix-I species requires the issuance of both an import and export permit. Import permits are issued only after the importing country determines that it will not be used for primarily commercial purposes (CITES Article III(3)) and that the proposed recipient of live animals or plants is suitably equipped to house and care for them. Thus, with few exceptions, Appendix-I species cannot be traded for commercial purposes.
The CITES Treaty requires Parties (member countries) to have adequate legislation in place for its implementation. Under CITES Resolution Conference 8.4 (Rev. CoP15) and related decisions of the CoP, the National Legislation Project evaluates whether Parties have adequate domestic legislation to successfully implement the Treaty (CITES 2011a). In reviewing a country's national legislation, the CITES Secretariat evaluates factors such as:
• Whether a Party's domestic laws prohibit trade contrary to the requirements of the Convention,
• Whether a Party has penalty provisions in place for illegal trade, and if they have designated the responsible Scientific and Management Authorities, and
• Whether a Party's legislation provides for seizure of specimens that are illegally traded or possessed.
The CITES Secretariat has determined that the legislation of Argentina, Colombia, Mexico, and Peru is in Category 1, meaning they meet all the requirements to implement CITES. Bolivia, Ecuador, and Venezuela were determined to be in Category 2, with a draft plan, but not enacted (
We are focusing our evaluation of the potential threats to this species primarily to parks for the following reasons. Most suitable habitat, primary forest, only remains in these protected areas. The best available information suggests that this species is now mostly found in protected areas such as parks, in part because this is where suitable habitat remains for the species. Additionally, the majority of the information available regarding the potential threats to the species pertains to the parks, where the species is usually found. Our rationale is supported by Cowen, who noted that encounter rates for large macaw species were generally higher in primary forests (2008, p. 15), which tend to be located in areas with protected status. Throughout this species' range, we found that many of the threats that occur to this species are the same or similar. Threats generally consist of various forms of habitat loss or degradation. Each range country for this species has protections in place, but for reasons such as limited budgets and limited enforcement capabilities, the laws and protections are generally not able to adequately protect the species.
Research has found that tropical parks have been surprisingly effective at protecting ecosystems and species within boundaries designated as parks or other protected status despite underfunding and pressures for resources (Oliveira et al. 2007, p. 1,235; Bruner et al. 2001, p. 126; Terborgh 1999, entire). Bruner's study found that protected areas are especially effective in preventing land clearing. It found that, in 40 percent of parks, land that had formerly been under cultivation and that was incorporated into park boundaries had actually recovered. This subsequently led to an increase in vegetative cover. The study also found that 83 percent of parks were successful at mitigating encroachment (Bruner et al. 2001, p. 125). It concluded that the conditions inside the parks were significantly better than in their surrounding areas (Bruner et al. 2001, p. 125). Oliveira et al. found that forests in conservation units were four times better at protecting against deforestation than unprotected areas (2007, p. 1,235). However, despite these protections, this species has experienced threats such that their populations are now so small (generally fewer than 100 in each population) that any pressure now has a more significant effect. Parks, without management, are often insufficient to adequately protect the species. Our analysis of regulatory mechanisms is discussed essentially on a country-by-country basis, beginning with Argentina, and is summarized at the end. Conditions in specific parks are discussed below.
In 2007, Argentina enacted a law mandating minimum standards for the environmental protection of native forests (Ley de Bosques). However, the federal government has not fully enforced the law, and provincial governments are not in full compliance with it (DiPaola et al. 2008, p. 2). Argentina lacks adequate protections of its natural environments; there is a lack of environmental awareness and commitment from the government to adequately protect its resources (FAO 2007, pp. 43–44, 59–60). Provinces usually allow landowners to decide whether to maintain forest cover or deforest the land. The absence of a serious land use planning strategy, particularly during the past 20 years, has led to significant habitat degradation (FAO 2007, p. 60). The threat to native forests has remained particularly high in the Salta Province. As a result, a coalition of indigenous communities and nongovernmental organizations filed for injunctive relief
This species primarily inhabits the parks and protected areas in Bolivia's Andean region (Herzog 2011, pers. comm.). National parks are intended to be strictly protected; however, some areas where the species occurs are also designated as areas of integrated management, which are managed for both biological conservation and the sustainable development of the local communities. Bolivia attempts to balance natural resource uses; however, it is one of the poorest countries in South America (MacLeod 2009, p. 6; CIA World Factbook, accessed December 6, 2011), and subsequently has competing priorities. As of 2005, Bolivia had 5 national parks, 6 national park and integrated management natural areas, 1 national park and indigenous territory (or communal lands), 4 national reserves, 2 biosphere reserves, and 3 integrated management natural areas (ParksWatch 2005, p. 1). These make up Bolivia's National System of Protected Areas ((SNAP) Servicio Nacional de Areas Protegidas). Below are the designations and their relevant categorizations of protections (eLAW 2003, p. 3).
(1) Park, for strict and permanent protection of representative ecosystems and provincial habitats, as well as plant and animal resources, along with the geographical, scenic and natural landscapes that contain them;
(2) Sanctuary, for the strict and permanent protection of sites that house endemic plants and animals that are threatened or in danger of extinction;
(3) Natural Monument, to preserve areas such as those with distinctive natural landscapes or geologic formations, and to conserve the biological diversity contained therein;
(4) Wildlife Reserve, for protection, management, sustainable use, and monitoring of wildlife;
(5) Natural Area of Integrated Management, where conservation of biological diversity is balanced with sustainable development of the local population; and
(6) “Immobilized” Natural Reserve, a temporary (5-year) designation for an area that requires further research before any official designations can be made and during which time no natural resource concessions can be made within the area (Supreme Decree No. 24,781 1997, p. 3).
The foundation of Bolivia's laws is largely based on Bolivia's 1975 Law on Wildlife, National Parks, Hunting, and Fishing (Decree Law No. 12,301 1975, pp. 1–34), which has the fundamental objective of protecting the country's natural resources. This law governs the protection, management, utilization, transportation, and selling of wildlife and their products; the protection of endangered species; habitat conservation of fauna and flora; and the declaration of national parks, biological reserves, refuges, and wildlife sanctuaries, regarding the preservation, promotion, and rational use of these resources (Decree Law No. 12,301 1975, pp. 1–34; eLAW 2003, p. 2). Later, Bolivia passed an overarching environmental law in 1992 (Law No. 1,333 1992), with the intent of protecting and conserving the environment and natural resources. Studies have shown that protected areas have been successful in providing protection from poaching, logging, and other forest damage, especially when compared to unprotected areas (Lee 2010, p. 3; Killeen et al. 2007, p. 603; Oliveira et al. 2007, p. 1,234; Asner 2005, p. 480; Ribeiro et al. 2005, p. 2; Gilardi and Munn 1998, p. 641). However, pressures on the parks' resources are increasing; these are described below.
Within the Greater Madidi-Tambopata Landscape, activities that could negatively affect this species occur, and there are competing priorities within these protected areas. The GMTL is divided into three contiguous areas, with two different management categories: A strictly protected National Park in two sections that total 1,271,000 ha (3,140,709 ac), and a natural integrated management area with 624,250 ha (1,542,555 ac), where conservation and sustainable development of the local communities is the main purpose (Conservation Strategy Fund (CSF) 2006, p. 29). The most significant activities that are having a negative impact or could in the future in this area are the construction of a highway within Madidi, mining for natural resources such as gold, drilling for oil, and a planned hydroelectric dam (ParksWatch 2011b, p. 8;
Bolivia's national policy is to decentralize decisionmaking, and responsibility for land planning and natural resource management is increasingly shifting to local and regional governments (Wildlife Conservation Society (WCS) 2009, pp. 2–5). However, the decentralization process is occurring without sufficient personnel, staff training, and operational funds. There is little information as to the actual protections that Bolivia's laws and protected areas confer to military macaws, despite the laws in place at the national level for its wildlife. Threats to the species and its habitat include unsustainable land use practices, illegal logging, mining, road building, oil extraction, illegal animal trade, and hunting, which are all still occurring within this species' habitat (MacLeod 2009, p. 6; WCS 2009, pp. 2–5). The mechanisms in place are inadequate at reducing the threat of habitat destruction and human disturbance within these protected areas.
The Colombian Government has enacted and ratified numerous domestic and international laws, decrees, and resolutions for managing and conserving wildlife and flora. Colombia currently has 54 areas that have protected status (El Sistema Nacional de Areas
In 2003, conservation priorities were identified for its bird species, a conservation corridor was designed, and a habitat conservation strategy within the San Salvador valley was developed (Strewe and Navarro 2003, p. 29). The private Buena Vista Nature Reserve was established and protects approximately 400 ha (988 ac) of tropical wet lowland forest and wet premontane forest on the northern slope of the Sierra Nevada. It encompasses extensive primary forests along an altitudinal gradient of 600 to 2,300 m (1,968 to 7,545 ft) and forest patches and secondary forest at elevations between 450 to 600 m (1,476 to 1,968 ft). The reserve is adjacent to the Sierra Nevada de Santa Marta National Park and the Kogi-Malayo Indian reserve (Strewe and Navarro 2003, p. 29).
A conservation project focusing on the coffee zone of the middle Río Frío is ongoing, and its goal is to create a conservation corridor connecting natural habitats and shade-grown coffee plantations (Strewe and Navarro 2004, p. 51). The establishment of the private nature reserve, Buena Vista, was the first step to conserve the foothill forest ecosystems. This was done in close cooperation with a local organization, Grupo Ecologico Defensores de la Naturaleza–Campesinos de Palomino (Strewe and Navarro 2003, pp. 34–35). The Pro-Sierra Nevada de Santa Marta Foundation (FPSNSM) maintains a permanent monitoring station at Buena Vista nature reserve. FPSNSM is working toward sustainable development projects in cooperation with local communities, national park units, and coffee-grower committees in the region. This includes educational campaigns to limit hunting. Habitat management takes place on private lands in the lowlands and foothills of the San Salvador valley to reduce the pressure on the remaining natural forest habitats, including a reforestation program using native tree species. Additionally, forest reserves have been established as part of a network of private nature reserves in the valley (Strewe and Navarro 2003, pp. 35–36).
Resource management in Colombia is highly decentralized. Colombian environmental management has been divided between the national and regional levels since the 1950s. Governmental institutions responsible for oversight appear to be under resourced (ITTO 2006, p. 222) and unable to adequately manage species such as the military macaw. Resources are managed within local municipalities by one of 33 “Autonomous Regional Corporations” known as CARs (Corporaciones Autónomas Regionales) (Blackman et al. 2006, p. 32). CARs are described as corporate bodies of a public nature, endowed with administrative and financial autonomy to manage the environment and renewable natural resources, implemented through Law 99 of 1993 (p. 32). Each department (analogous to U.S. state designations) within Colombia is managed by a separate local entity. These corporations grant concessions, permits, and authorizations for forest harvesting (ITTO 2006, p. 219).
As of 2005, 40 percent of Colombia's public resources were managed by local municipalities, making Colombia one of the most decentralized countries in terms of forestry management in Latin America (Blackman et al. 2006, p. 36). Monitoring of resource use and forest development authorized by these corporations is conducted mostly by local nongovernmental organizations. The International Tropical Timber Organization (ITTO) considers the Colombian forestry sector to be lacking in law enforcement and on-the-ground control of forest resources, with no specific standards for large-scale forestry production, no forestry concession policies, and a lack of transparency in the application of the various laws regulating wildlife and their habitats (ITTO 2006, p. 222). Consequently, there is currently no effective vehicle for overall coordination of species management for multijurisdictional species such as the military macaw. Fundación ProAves developed a conservation plan for 2010 to 2020 for several parrot species, including the military macaw (Botero-Delgadillo and Páez 2011, p. 7). However, it is unclear if or when it will be adopted by the Government of Colombia.
Additionally, despite protections, forest loss continues almost unabated in the mountains of the Sierra Nevada, demonstrating that formal protections and regulatory mechanisms are inadequate. In this area, El Congo Reserve currently may be the only secure nesting site for the military macaw, but it is too small (40 ha; 99 ac) to conserve viable populations.
Efforts are occurring in Colombia to protect and monitor its species, although they do not appear to be adequate to combat the threats to this species. One management tool that Colombia has recently developed is a bird-watching strategy in these protected areas to monitor and report on bird species such as the military macaw, in conjunction with ecotourism (National Natural Parks of Colombia 2011). Despite the efforts in place, there is a lack of information available about the status of this species and its habitat in Colombia. There is no clear information about the status of the species in Colombia, particularly its population trend. We are unable to determine that this conservation strategy will sufficiently mitigate threats to the military macaw, nor are we able to find that the regulatory mechanisms in place in Colombia are adequate. The species population is small in Colombia, and threats to its habitat still exist.
In Ecuador, the military macaw is considered to be very rare (Arcos-Torres and Solano-Ugalde 2008, p. 72). It has been observed in the areas of Sumaco and Zamora-Chinchipe (Youth 2009, p. 1; Snyder et al. 2000, p. 125) and recently at Kichwa River Reserve (Reserva Kichwa Río), within the Gran Sumaco Biosphere Reserve Guacamayos (Arcos-Torres and Solano-Ugalde 2008, p. 72). This species is categorized as endangered “en peligro de extinción” (Arcos-Torres and Solano-Ugalde 2008, p. 69) in Ecuador. It is protected by Decree No. 3,516 of 2003 (Unified Text of the Secondary Legislation of the Ministry of Environment) (EcoLex 2003b, pp. 1–2 and 36). This decree summarizes the laws governing environmental policy in Ecuador and provides that the country's biodiversity be protected and used primarily in a sustainable manner.
Habitat destruction is ongoing and extensive in Ecuador (Mosandl et al. 2008, p. 37; Butler 2006b, pp. 1–3; FAO 2003b, p. 1). Unsustainable forest harvest practices likely continue to impact the military macaw's habitat. In 2004, Ecuador Law No. 17 (Faolex 2004, pp. 1–29) amended the Forest Act of 1981 (Law No. 74) to include five criteria for sustainable forest management: (i) Sustainable timber production; (ii) the maintenance of forest cover; (iii) the conservation of biodiversity; (iv) co-responsibility in
The Ecuadorian Government recognizes 31 different legal categories of protected lands (
Although this colony has persisted for about 150 years (Huatatoca, pers. comm. in Arcos-Torres and Solano-Ugalde 2008, p. 72), it may be affected by logging and the resulting deforestation on nearby land (Arcos-Torres and Solano-Ugalde 2008, p. 72). The best available information indicates that on-the-ground enforcement of Ecuador's laws, oversight of the local jurisdictions, and implementing and regulating activities are ineffective in conserving the military macaw and its habitat in Ecuador. Researchers suggest that the apparent lack of this species in Ecuador is related to lack of existing suitable sites (large areas containing appropriate feeding, nesting, and breeding habitat) for the formation of breeding colonies. The governmental institutions responsible for natural resource oversight in Ecuador appear to be under-resourced, and to our knowledge, there is a lack of law enforcement on the ground. Despite the creation of a national forest plan, the best available information indicates there is a lack of capacity to implement this plan due to inconsistencies in application of regulations, and discrepancies between actual harvesting practices and forestry regulations. These inadequacies have facilitated logging, clearing for agriculture, subsistence farming, and road development. Habitat conversion and alteration are ongoing within Ecuador, including within protected areas.
This species is listed as endangered and is regulated under the general terms of the General Law of Ecological Balance and Environmental Protection (Ley General del Equilibrio Ecológico y Protección al Ambiente (LGEEPA)), the General Wildlife Law (Ley General de Vida Silvestre (LGVS)), and also under CITES (CEC 2003, unpaginated). NOM–059–ECOL–2010 establishes a list of wildlife species classified as either in danger of extinction (endangered), threatened, under special protection, or probably extinct in the wild (Government of Mexico 2002, p. 6). All use of endangered and threatened species requires a special permit from the Secretariat of the Environment and Natural Resources (Secretaría del Medio Ambiente y Recursos Naturales (SEMARNAT). SEMARNAT's main goal is to protect, restore, and conserve its ecosystems and natural resources. Under Mexico's General Wildlife Law, the use of these protected species, including the military macaw, may be authorized only when priority is given to the collection and capture for restoration, repopulation, and reintroduction activities (Comisión Nacional Para El Conocimiento y Uso de la Biodiversidad 2009, unpaginated; CEC 2003, unpaginated).
International trade of Mexico's wildlife is also managed by SEMARNAT. In 2008, Mexico passed Article 60_2 to amend its General Wildlife Law. The article bans the capture, export, import, and reexport of any species of the Psittacidae (parrot) family whose natural distribution is within Mexico (Cantú and Sánchez 2011, p. 1). It allows authorizations for the removal of individuals from the wild to be issued only for conservation purposes, or to accredited academic institutions for scientific research. However, it does not appear to be adequate based on investigations of trade of Mexico's native parrot species.
The military macaw falls under the jurisdiction of several other laws in Mexico. The General Law on Sustainable Forest Management (Ley General de Desarrollo Forestal Sustenable (LGDFS 2003)) governs forest ecosystems in Mexico, including military macaw habitat. This law formalizes the incorporation of the forest sector in a broader environmental framework. Under this law, harvesting of forests requires authorization from SEMARNAT. It also requires that harvesting forests is based on a technical study and a forest management plan (GOM 2010, p. 24). A number of additional laws complement the 2003 law in regulating forest use. The LGEEPA regulates activities for protecting biodiversity and reducing the impact on forests and tropical areas of certain forest activities; the LGVS governs the use of plants and wildlife found in the forests; the General Law on Sustainable Rural Development (Ley General de Desarrollo Rural Sustentable) provides guidance for activities aimed at protecting and restoring forests within the framework of rural development programs; and the Agrarian Law (Ley Agraria) governs farmers' ability to use forest resources on their land (Anta 2004, in USAID 2011, unpaginated).
Another law regulating portions of the military macaw's habitat is the National System of Protected Natural Areas (Sistema Nacional de Áreas Naturales Protegidas (SINANP)). These protected natural areas are created by presidential decree, and the activities in them are regulated under the LGEEPA, which requires that the protected natural areas receive special protection for conservation, restoration, and development activities (Comisión Nacional de Áreas Naturales Protegidas (CONANP) 2011, unpaginated). These natural areas are categorized as: Biosphere Reserves, National Parks, Natural Monuments, Areas of Natural Resource Protection, Areas of Protection of Flora and Fauna, and Sanctuaries (CONANP 2011, unpaginated).
Conservation strategies in Mexico rely heavily on natural protected areas, and biosphere reserves comprise most of the designated protected area in the country (Figueroa and Sanchez 2008, pp. 3324,
In Peru, this species is listed as vulnerable under Supreme Decree No. 034–2004–AG (2004, p. 276,855), and its protections fall under the jurisdiction of the National Institute of Natural Resources (Instituto Nacional de Recursos Naturales, INRENA). This Decree prohibits hunting, take, transport, and trade of protected species, except as permitted by regulation. The military macaw is thought to occur in at least three areas with protected status in Peru. The Peruvian national protected area system includes several categories of habitat protection (refer to Factor A). National reserves, national forests, communal reserves, and hunting reserves are managed for the sustainable use of resources (IUCN 1994, p. 2). The designations of national parks, sanctuaries, and protection forests are established by supreme decree that supersedes all other legal claim to the land and, thus, these areas tend to provide some form of habitat protection (Rodríguez and Young 2000, p. 330). However, limited information is available with respect to the status of this species in Peru. We do not know if the occurrence of the military macaw within protected areas in Peru actually protects the species or mitigates threats to the species, and to what extent these protections are effective.
In Venezuela, the military macaw is thought to exist in two parks: El Ávila National Park and Henri Pittier National Park. Limited information about the status of this species is available in Venezuela. Henri Pittier National Park (107,800 ha; 266,380 ac) was declared the first national park in Venezuela in 1937. This park is the largest national park of the Cordillera de la Costa (Coastal Mountain Range) region. The principal threats to this park include: fire, human encroachment, solid waste buildup, pollution, hunting, and limited resources for effective park management (ParksWatch 2011g, unpaginated). In many cases, the intensity of threats has increased. Prior to 1994, a team of government representatives, NGOs, universities, and aviculturists in Venezuela had developed both an action plan for the conservation of parrots and a book containing information on parrot biology (Morales et al. 1994, in Snyder 2000, p. 125). However, currently, it is unclear what conservation initiatives are occurring.
El Ávila National Park (81,800 ha; 202,132 ac in size), is located along the central stretch of the Cordillera de la Costa Mountains in northern Venezuela. The most immediate threats to the park are forest fires and illegal settlements, which occur primarily near Caracas (ParksWatch 2011f, unpaginated). ParksWatch notes that the areas closest to the city have experienced more problems in the more isolated northern slope and eastern sector of El Ávila. Other threats in this park include the presence of nonnative plants and poaching.
In Argentina, Ecuador, Peru, and Venezuela, we recognize that conservation activities are occurring, and that these activities may have a positive effect on the species at the local population level. Parrots, in general, are long-lived with low reproductive rates, traits that make them particularly sensitive to poaching and other threats such as habitat loss (Lee 2010, p. 3; Thiollay 2005, p. 1,121; Wright et al. 2001, p. 711). The primary threats to this species historically have been the loss of habitat and capture for the pet trade (Strewe and Navarro 2003, p. 33). Since regulatory mechanisms such as CITES and the WBCA have been put into place, particularly since 1992, much of the legal international trade in the military macaw has declined (see Factor B discussion, above). However, those pressures prior to the military macaw's listing under CITES and the WBCA contributed significantly to the decline in population numbers for this species. Since then, the species' habitat has become fragmented, its range has reduced, and its populations have more difficulty finding suitable habitat.
Each of these countries has enacted laws to protect its wildlife and habitat. The populations of this species in these four countries are likely to number from fewer than 100 to a few hundred individuals. There are numerous threats acting on this species; its populations have severely declined. In some cases, the actual causes of decline may not be readily apparent and a species may be affected by more than one threat in combination. Habitat conservation measures within these range countries do not appear to sufficiently mitigate future habitat losses. Habitat loss and degradation continue to occur within these countries; the best available information does not indicate that the existing regulatory mechanisms have mitigated these threats in the range of this species. Because these populations of this species are very small in these countries, any impact is likely to have a significant impact on the species; therefore, we are unable to conclude that regulatory mechanisms in place for this species and its habitat are adequate.
Bolivia, Colombia, and Mexico have enacted various laws and regulatory mechanisms for the protection and management of this species and its habitat. Although information available is limited, the best evidence suggests that the military macaw exists in small populations in several large protected areas within these countries. As discussed under Factor A, the military macaw prefers primary forests and woodlands and complex habitat that offers a variety of food sources. Its suitable habitat has been severely constricted due to deforestation. In these three countries, there is evidence of threats to this species due to activities such as habitat destruction and degradation, poaching, construction of roads, and mining, as well as decreased viability due to small population sizes, despite the regulatory mechanisms in place. We acknowledge that research and conservation programs are occurring in these countries. However, based on the best available information, we find that the existing regulatory mechanisms for these countries are either inadequate or inadequately enforced in order to protect the species or to mitigate ongoing habitat loss and degradation, poaching, and the severe population decline of this species.
Based on the best available information, we are unable to conclude that the existing regulatory mechanisms currently in place sufficiently mitigate threats to the military macaw throughout its range. Therefore, we find that the existing regulatory mechanisms are inadequate to mitigate the current threats to the continued existence of the military macaw throughout its range now and into the future.
Small, declining populations can be especially vulnerable to environmental disturbances such as habitat loss (O'Grady 2004, pp. 513–514). Removal of a few birds from a population of 100 can have a greater effect than removal of a few birds from larger populations. In order for a population to sustain itself, there must be enough reproducing individuals and habitat to ensure its survival. Conservation biology defines this as the “minimum viable population” requirement (Grumbine 1990, pp. 127–128). This requirement may be between 500 and 5,000 individuals depending on variability, demographic constraints, and evolutionary history. The military macaw occurs in relatively small populations (ranging from a few pairs to approximately 100 individuals, with the total population size that is likely no greater than a few thousand). The military macaw relies on specific habitat to provide for its breeding, feeding, and nesting. Historically, the military macaw existed in much higher numbers in more continuous, connected habitat. Its suitable habitat is becoming increasingly limited, and is not likely to expand in the future.
The combined effects of habitat fragmentation and other factors on a species' population can have profound effects and can potentially reduce a species' respective effective population by orders of magnitude (Gilpin and Soulé 1986, p. 31). For example, an increase in habitat fragmentation can separate populations to the point where individuals can no longer disperse and breed among habitat patches, causing a shift in the demographic characteristics of a population and a reduction in genetic fitness (Gilpin and Soulé 1986, p. 31). This is especially applicable for a species such as the military macaw that was once wide-ranging. It has lost a significant amount of its historical range due to habitat loss and degradation. Furthermore, as a species' status continues to decline, often as a result of deterministic forces such as habitat loss or overutilization, it will become increasingly vulnerable to other impacts. If this trend continues, its ultimate extinction due to one or more stochastic (random or unpredictable) events becomes more likely. The military macaw's current occupied and suitable range is highly reduced and severely fragmented. The species' small population size, its reproductive and life-history traits, and its highly restricted and severely fragmented range increase this species' vulnerability to other threats.
Consideration of ongoing and projected climate change is a component of our analysis under the ESA. The term “climate change” refers to a change in the mean, variability, or seasonality of climate variables over time periods of decades or hundreds of years (Intergovernmental Panel on Climate Change (IPCC) 2007, p. 78). Forecasts of the rate and consequences of future climate change are based on the results of extensive modeling efforts conducted by scientists around the world (Solman 2011, p. 20; Laurance and Useche 2009, p. 1,432; Nuñez et al. 2008, p. 1; Margeno 2008, p. 1; Meehl et al. 2007, p. 753). Climate change models, like all other scientific models, produce projections that have some uncertainty because of the assumptions used, the data available, and the specific model features. The science supporting climate model projections as well as models assessing their impacts on species and habitats will continue to be refined as more information becomes available. While projections from regional climate model simulations are informative, various methods to downscale projections to more localized areas in which the species lives are still imperfect and under development (Solman 2011, p. 20; Nuñez et al. 2008, p. 1; Marengo 2008, p. 1). The best available information does not indicate that climate change is impacting this species such that it is a threat.
A species may be affected by more than one threat acting in combination. Impacts typically operate synergistically, particularly when populations of a species are decreasing. Initial effects of one threat factor can later exacerbate the effects of other threat factors (Gilpin and Soulé 1986, pp. 25–26). Further fragmentation of populations can decrease the fitness and reproductive potential of the species, which will exacerbate other threats. Within the preceding review of the five factors, we have identified multiple threats that may have interrelated impacts on this species. The most significant threats are habitat loss and poaching, particularly because the species has such a small and fragmented population, and it requires a large range and variety of food sources. Lack of a sufficient number of individuals in a local area or a decline in their individual or collective fitness may cause a decline in the population size, despite the presence of suitable habitat patches. For example, the species' behavior of not nesting in areas where depredation or disturbance is likely may mean that a nest site is “abandoned” before nesting is even attempted. Thus, the species' productivity may be reduced because of any of these threats, either singularly or in combination. These threats occur at a sufficient scale so that they are affecting the status of the species now and will in the future.
In addition, the species' current range is highly restricted and severely fragmented. The species' small population size, its reproductive and life-history traits, and its highly restricted and severely fragmented range increase the species' vulnerability to adverse natural events and manmade activities that destroy individuals and their habitat. The susceptibility to extirpation of limited-range species can occur for a variety of reasons, such as when a species' remaining population is already too small or its distribution too fragmented such that it may no longer be demographically or genetically viable (Harris and Pimm 2004, pp. 1,612–1,613). Therefore, we find that the species' small population size, in combination with other threats identified above, is a threat to the continued existence of the military macaw throughout its range now and in the future.
We find that this species is endangered based on the above evaluation, and we are listing this species as endangered due to the threats described above that continue to act on this species. Within the preceding review of the five factors, we identified multiple threats that may have interrelated impacts on the species. For example, the productivity of military macaws may be reduced because of the effects of poaching and habitat loss, which are expected to continue to act on the species in the future. In cases where populations are very small, species mate
In four of the countries (Argentina, Ecuador, Peru, and Venezuela), the populations are extremely small, and very little information about the status of the species is available in many parts of its range. It is not necessarily easy to determine (nor is it necessarily determinable) which potential threat is the operational threat. However, we believe that these threats, either individually or in combination, are likely to occur at a sufficient geographical scale to significantly affect the status of the species. Additionally, although we do not have precise genetic information about populations throughout this species' range, it is likely that there is some genetic transfer between populations. We believe this based on its demonstrated ability to fly long distances in search of food sources (Chosset and Arias 2010, p. 5). The most significant threat, habitat loss and degradation, is prevalent throughout this species' range. Its suitable habitat has severely contracted, and habitat loss is likely to continue into the future. We do not find that the factors affecting the species are likely to be sufficiently ameliorated in the foreseeable future. Therefore, we find that listing the military macaw is warranted throughout its range, and we propose to list the military macaw as endangered under the ESA.
The great green macaw (
There is no universally accepted definition of what constitutes a subspecies, and the use of the term subspecies varies among taxonomic groups (Haig and D'Elia 2010, p. 29). To be operationally useful, subspecies must be discernible from one another (
This species ranges between 77 and 90 cm (30 and 35 inches) in length and has a red frontal band above a large black bill, bare facial features with black lines, blue flight feathers on the superior feathers and olive inferior feathers, blue lower back, and orange tail (Juniper and Parr 1998, pp. 423–424). It is the second largest New World macaw. This species is not sexually dimorphic, meaning there are no differences in appearance between males and females of the same species. The great green macaw is very similar in appearance to the military macaw, but the military macaw has more prominent blue coloring on its hind neck, has darker plumage, and is smaller. These two species are also separated geographically.
The great green macaw is patchily distributed in a 100,000-km
Deforestation has reduced this species' habitat and concentrated its population into primarily five areas: the border of Honduras and Nicaragua, the border of Nicaragua and Costa Rica, the Darién region of Panama and Colombia, and two very small populations in Ecuador (Hardman 2011, p. 8; Monge et al. 2009, p. 159).
Population estimates were made in the 1990s and early 2000s. In 1993, the population estimate was 5,000 individuals; in 2000, the population was estimated to be between 2,500 and 10,000 birds (BirdLife International 2014b, p. 4; Rodríguez-Mahecha 2002a). The global population is now likely less than 2,500 mature individuals (or less than 3,700 with juveniles included) (Monge et al. 2009, pp. 213, 256); however, the actual population is far from clear. Although historical observations are useful for assessing the range of the species, they may also be biased because surveys may not have sampled randomly. Thus, historical population estimates of this species may not be accurate. Although the population in Costa Rica is increasing, the population continues to be very small (Monge et al. 2010, p. 16), and researchers believe that the global population of this species is decreasing (Botero-Delgadillo and Páez 2011, p. 91). Specific information about the range and population estimate for each country is discussed below.
Historically in Colombia, it was found in the north of the Serranía de Baudó,the West Andes, and east of the upper Sinú valley (Snyder et al. 2000, pp. 121–123). In the late 1990s, this species was observed in Los Katíos National Park, around Utría National Park in Serranía de Baudó (Salaman
The great green macaw historically inhabited forests along the Caribbean lowlands of Costa Rica (Chosset et al. 2004, p. 32). The population has increased in that area since 1994, when there was an estimate of 210 birds. The population appears to have fluctuated; in 2004, it was estimated that a maximum of 35 pairs were breeding in northern Costa Rica (Chosset et al. 2004, p. 32). A survey conducted in 2009 reported a population estimate of 302 in Costa Rica (Monge et al. 2009, p. 12); another estimate was that there was a total of 275 birds in Costa Rica in 2010 (Chassot 2010 pers. comm. in Hardman 2011, p. 11).
Approximately 67,000 ha (165,561 ac) of great green macaw breeding territory now remains in Costa Rica (Chun 2008, p. v), which is less than 10 percent of its original suitable habitat (Monge et al. 2010, p. 15; Chosset et al. 2004, p. 38). Potential great green macaw breeding habitat, excluding Ecuador, is defined by the density of almendro trees, which this species uses for its primary feeding and nesting substrate. Almendro trees are found only on the Atlantic coast from southern Nicaragua down through Costa Rica and Panama and into Colombia, primarily at altitudes below 900 m (2,953 ft). Based on the assumption that great green macaw breeding pairs require 550 ha (1,359 ac) of non-overlapping habitat, Chun postulated that northern Costa Rica could support about 120 breeding pairs (2008, p. 110). Chun notes that even the forested areas identified as individual “patches” through a geographic information system (GIS) program do not necessarily represent areas of forest with continuous canopy cover (indicating complex, fairly undisturbed habitat that is likely to contain nutritional needs for this species). Although these patches of forest are technically connected at some level, they are for the most part highly porous and discontinuous, and no analysis was performed to filter out stands that might be porous or discontinuous. There are some areas in its potential range that are above the elevation threshold for almendro trees, and do not meet the criteria for suitable habitat.
In Ecuador, there may only be one viable population. This population exists in the Cerro Blanco Protected Forest, which is 6,070 ha (15,000 ac) outside of Guayaquil in Guayas Province (Villate et al. 2008, p. 19). This population is believed to be approximately 10 individuals. An overall estimate of 60 to 90 individuals in Ecuador in 2011 may be optimistic (Horstman pers. comm. in Hardman
In addition to the small population in the Cerro Blanco Protected Forest, recently reported to be about 10 individuals, there may be another small group in the Rio Canande Reserve, which is a humid tropical forest and is located in the Esmeraldas province in coastal northern Ecuador (Horstman pers. comm. in Hardman 2011, p. 12). Rio Canande Reserve (1,813 ha or 4,478 ac) is one of eight reserves managed by another NGO, the Jocotoco Foundation. The most recent population census in Ecuador was conducted in the provinces of Esmeraldas, Santa Elena, and Guayas. Five individuals were recently observed in the Bosque Protector Chongón Colonche; one macaw was observed at the Hacienda El Molino, near the Cerro Blanco Protected Forest; and two macaws were seen at Rio Canande (Horstman 2011, p. 16). The Cordillera (mountain range) de Chongón-Colonche is on the central pacific coast of Ecuador, located in the provinces of Guayas and Manabi. Some individual great green macaws have also been observed at Hacienda Gonzalez 40 km (25 mi) northwest of Guayaquil; however, these individuals may be part of the same population found in Cerro Blanco. In summary, the majority of individuals are believed to be in Esmeraldas Province, and very small numbers remain in the Chongón-Colonche mountain range, Guayas.
In 1983, the great green macaw was common in lowland rain forests in the Moskitia (Mosquitia) area and eastern Olancho (Marcus 1983, p. 623). The region known as the Moskitia includes both eastern Honduras and northern Nicaragua. Historically, the species was reported to occur in the areas of Juticalpa and Catacamas in Olancho (Marcus 1983, p. 623). The species was observed daily in the Plátano River area in flocks of more than 10 individuals and almost daily in the Patuca River area, usually in pairs (Barborak 1997 in Snyder et al. 2000, pp. 121–123). In August 1992, macaws were recorded on the Patuca River at Pimienta upstream from Wampusirpe (Wiendenfeld in Monge et al. 2009, p. 242). Currently, this species exists in the Rio Plátano Biosphere Reserve (800,000 ha or 1,976,843 ac), which has been described as one of the most important reserves in Central America (Anderson et al. 2004, p. 447).
In Nicaragua, the great green macaw is found primarily in lowland, tropical, and rain forest, as well as pine barrens, primarily in the Bosawas Reserve in the north and around the Indio-Maíz and San Juan rivers in the south (Stocks et al. 2007, p. 1503; Martinéz-Sánchez 2007; Chassot 2004, p. 36). The name Bosawas is derived from three significant geographic landmarks that delineate the reserve's core zone limits: The Bocay River, Mount Saslaya, and the Waspuk River. The Bosawas protected area contains habitat that is vital to the species. In the buffer zone of the Indio-Maíz Biological Reserve, great green macaw nesting locations have been identified. The Indio-Maíz Biological Reserve is located in Nicaragua just across the San Juan River at the northern border of Costa Rica, and is nearly 264,000 ha (652,358 ac) in size. The Nicaragua and Costa Rica macaw populations intermix; macaws have been observed crossing the San Juan River, which separates Nicaragua and Costa Rica. As of 2006, in the Quezada, Bijagua, Samaria, and La Juana communities, five macaw nests had been located during surveying. As of 2010, 35 active nests had been documented in the Indio-Maíz Biological Reserve (Monge et al. 2010, p. 16).
In 1999, Powell et al. estimated that the Nicaraguan great green macaw population could be 10 times the size of the population in Costa Rica. In 2008, a population viability analysis was conducted that indicated the size of the great green macaw population in Nicaragua was 661 individuals (Monge et al. 2010, p. 21). In 2009, a population census was conducted, during which 432 macaws were observed. The researchers suggest that the “average population” in Nicaragua is 532 (Monge et al. 2010, p. 13). This 2009 study yielded an estimated population of 834 individuals in Costa Rica and Nicaragua combined (Monge et al. 2010, p. 21).
In Panama, the great green macaw is believed to inhabit the following areas: Bocas del Toro, La Amistad, northern Veraguas, Colon, San Blas, Darién, and Veraguas South (Monge et al. 2009, unpaginated). The species has been described as locally fairly common near Cana, Alturas de Nique, in 2005 (Angehr
The global population of great green macaws is estimated to be between 2,500 and 3,700 mature individuals (BLI 2014b, p. 4; Chassot and Arias 2012, p. 61; Monge et al. 2009, p. 213; Jahn in litt. 2005, 2007, unpaginated). Based on the best available information from experts, the total population is likely between 1,000 and 3,000 individuals (Botero-Delgadillo and Páez 2011, p. 91; Monge et al. 2009, p. 213; Monge et al. 2009b, p. 68). In Ecuador, the population is estimated to be between 30–40 individuals (Horstman
The great green macaw inhabits humid lowland foothills and deciduous forests generally below 600 m (1,968 ft), but also may occur between 1,000 and 1,500 m (3,281 and 4,921 ft) depending on suitable habitat, which is primarily based on the presence of almendro (
The great green macaw has been observed in flocks of up to 18 individuals, and has been observed traveling long distances on the Caribbean slope. Macaws are strong fliers and are known to travel hundreds of kilometers (Chosset and Arias 2010, p. 5; Chosett et al. 2004, p. 36). During a study in the late 1990s, macaws fitted with radio transmitters demonstrated that macaws migrate seasonally based on food availability, and were found to travel between 40 and 58 km (25 to 36 mi) while in search of food (Chosset et al. 2004, p. 35).
The great green macaw has been observed feeding on fruits of 37 tree species (Berg et al. 2007, p. 2; Chassot et al. 2006, p. 35). While it is closely associated with the almendro tree, its diet varies based on location. In Ecuador, it was observed feeding on the following tree species:
The great green macaw is closely associated with almendro trees (
Likely pollinators of the almendro tree are bees within the genera
Wood from the almendro tree is heavy, commercially valuable, and yields the highest prices on local markets (Rodriguez and Chaves 2008, p. 5). It is used for furniture, floorings, bridges, railroad ties, boats, marine construction, handicrafts, veneers, industrial machinery, sporting equipment, springboards, and agricultural tool handles (Schmidt 2009, p. 16). Almendro outsells every other tree species on the Costa Rican timber market (Grethel and Norman 2009 in Schmidt 2009, p. 77; Rodriguez and Chaves 2008, p. 5). It was listed in Appendix III of CITES by Costa Rica in 2003 and by Nicaragua in 2007 (
Recent research found that this tree species is much more restricted to lowland habitat than previously described; it is predicted to occur between 45 and 125 m (147 to 410 ft) in elevation, in part based on its soil requirements (Schmidt 2009, p. iv; Chun 2008, p. 109). The almendro tree is best adapted to areas with high levels of rainfall and acidic clay soils with good drainage below elevations of 500 m (1,640 ft) such as the Atlantic lowlands of Costa Rica (Schmidt 2009, p. iv). Almendro trees require at least 2,000 millimeters (mm) (79 inches) of rainfall per year for optimal growth (Schmidt 2009, p. 69).
Great green macaw breeding pairs are believed to require a home range of 550 ha (1,359 ac) (Chun 2008, p. 105). Because the great green macaw requires such a large range, and is strongly associated with almendro trees, range countries such as Nicaragua and Costa Rica have developed conservation plans for the almendro tree. Almendro trees commonly occur at a density of less than one adult tree per hectare (Hanson et al. 2008 in Schmidt 2009, p. 14; Hanson et al. 2006, p. 49). The highest density recorded was 4 trees per hectare (Chaverri and López 1998). In one area of Costa Rica that was surveyed for almendro trees, of 140,178 ha (56,728 ac) surveyed, 20 percent exhibited densities of 0.50 almendro trees per hectare or more, and 50 percent had densities of 0.20 trees per ha or more (Chun 2008, p. 103).
Due to their important role in the ecosystem, particularly with respect to the great green macaw, conservation efforts have focused on the almendro tree. These trees not only provide habitat to many wildlife species such as the great green macaw, but they also play a significant role in the ecosystem. One conservation strategy for the great green macaw is to protect 30,159 ha (74,493 acres) of primary, secondary, and mangrove forest that remains in this species' nesting habitat. Another conservation strategy has been to establish almendro tree plantations. Due to its open crown structure, almendro has a relatively translucent canopy that produces only moderate shade, which allows for the production of shade canopy crops such as pineapple and cacao (Schmidt 2009, p. 19). These almendro plantations are being researched for several reasons, particularly due to the almendro tree's ability to resist decay, its ability to capture carbon dioxide, and its role in the ecosystem (Schmidt 2009, p. 11). Additionally, almendro trees have been identified as the most promising species for long-term carbon sink reforestation projects in Costa Rica (Redondo-Brenes 2007, p. 253; Redondo-Brenes and Montagnini 2006, p. 168).
In Ecuador, the great green macaw is not dependant on almendro trees, although it still inhabits humid lowland areas (Juniper and Parr 1998, p. 424). In this habitat, the great green macaw prefers
There are various protections in place for the great green macaw at the international, national, and local levels. At the international level, this species is listed as endangered on the IUCN Red List due to continuous loss of habitat, hunting, and poaching of this species for the pet trade (BLI 2013). IUCN's Red List classifies species as endangered (extinction probability of 20 percent within 20 years) or critically endangered (extinction probability of 50 percent within 10 years) based on several criteria, including limited or declining ranges or populations. However, the status under IUCN conveys no actual protections. This species is listed in Appendix I of CITES. Appendix I includes species threatened with extinction that are or may be affected by international trade, and are generally prohibited from commercial trade. Refer to the discussion above for the military macaw for additional information about CITES. The great green macaw's conservation status in each country is discussed below and in more detail under Factor D.
The great green macaw is listed as Vulnerable on Colombia's Red List (Renjifo et al. 2002, p. 524). It has protected status in Los Katíos National Park, Utría National Park, Paramillo National Park, and Farallones de Cali National Natural Park (Rodriguez et al. 2002, pp. 120–121). The largest population of the great green macaw is believed to exist in the Darién Endemic Bird Area (EBA) 023, which encompasses southern Panamá and northwestern Colombia. However, there are no reliable population estimates for this area (Botero-Delgadillo and Páez 2011, p. 91; Jahn
The great green macaw is considered to be endangered in Costa Rica (Monge et al. 2010, p. 22; Herrero 2006, p. 6; Executive Order No. 26435–MINAE). Several intense conservation initiatives are underway for this species in Costa Rica. In 2001, a committee was formed to investigate a corridor for the conservation of this species' habitat. As a result, the San Juan-La Selva Biological Corridor was formed to connect the Indio Maíz Biological Reserve in southeastern Nicaragua with the Central Volcanic Cordillera Range in Costa Rica. This links Costa Rica's La Selva Biological Station in the north to the Barra del Colorado Wildlife Reserve and National Park and Protective Zone of Tortuguero on Costa Rica's Caribbean coast. In addition, the conservation team lobbied for the establishment of the Maquenque National Wildlife Refuge to protect the macaw's breeding habitat (Hardman 2011, p. 10; Chun 2008, p. 98). This corridor makes up a part of the larger MesoAmerican Biological Corridor, which has been proposed to connect protected habitat from the Yucatan Region in southern Mexico and Belize to the Darién National Park in Panama (
The San Juan-La Selva binational corridor links existing protected wild areas. There is also an extended part to the northwest that includes the El Castillo area. The goal of this initiative is to provide linkages to 29 protected areas involving 1,311,182 ha (3,240,001 ac) (Chassot et al. 2006, p. 85). Because macaws are known to move hundreds of
This species is categorized as critically endangered in Ecuador (Monge et al. 2009, p. 256), primarily due to deforestation and hunting pressures. In Ecuador, the only potentially population is believed to exist in the Cerro Blanco Protected Forest, which is 6,070 ha (15,000 ac) in size. The Guayaquil subspecies of the great green macaw (
The great green macaw is categorized as endangered in Honduras (List of Wildlife Species of Special Concern, Resolution No. Gg–003–98 APVS). In 1990, the Government of Honduras prohibited the capture and sale of wildlife, including the great green macaw in Honduras. Currently, this species exists in the Rio Plátano Biosphere Reserve (which consists of 800,000 ha or 1,976,843 ac). The official designation of the Biosphere as a reserve is to protect and conserve biodiversity; however, this designation has not halted deforestation within the protected area (UNESCO 2011, p. 1; ParksWatch 2011; Wade 2007, p. 65). Additionally, as of 2009, there were 23 areas in Honduras identified as Important Bird Areas (IBAs) (Devenish et al. 2009, p. 1) that may provide additional protections to this species in part by serving as ecotourism sites that can increase conservation efforts in the areas. For additional information on IBAs, see the discussion above for the military macaw.
Nicaragua follows the IUCN categorization of endangered for this species (Castellon 2008, pp. 13, 19; Lezama-López 2006, p. 90). The great green macaw exists in the Indio-Maíz Biological Reserve, which has had protected status since 1990, although threats to the species still exist in this Reserve (Herrera 2004, pp. 5–6). Nicaragua is also participating in the bi-national conservation strategy for this species (Monge et al. 2009, pp. 11, 16).
There is little information available regarding the status of this species in Panama (Monge et al. 2009, p. 67); however, Panama follows the IUCN categorization for this species (Devenish et al. 2009, p. 294). The great green macaw is believed to be in Darién National Park (Monge et al. 2009, p. 68). Panama's wildlife law of 1995, Law No. 24, establishes the standards for wildlife conservation.
There are many nongovernmental organization (NGO), private, and government efforts to protect this species, although not all of the projects and NGOs are identified in this document. NGOs have conducted collaborative efforts, such as training workshops, that are community-focused and aimed at the conservation of the habitat. In Nicaragua, Fundación Cocibolca is active in this species' conservation. This NGO first signed an agreement with Nicaragua's Natural Resources Ministry (MARENA) in 1996, at which time the conservation group was the first NGO to have been granted responsibility to manage a national protected area in Nicaragua (
Since 2001, Fundación del Río and the Tropical Science Center in Costa Rica have coordinated a binational campaign focused on promoting the awareness of the ecology of the great green macaw in the lowlands of the San Juan River area (Chassot et al. 2009, p. 9). Between 2002 and 2005, at least 11 workshops on great green macaw biology and preservation were held within communities of the buffer zone of Indio-Maiz Biological Reserve in Costa Rica (Chassot et al. 2006, p. 86). Some examples of projects initiated by NGOs include installation of nest boxes to increase nest availability and community heritage festivals that are focused on the great green macaw. Some NGOs are providing training to local communities to monitor populations, and some researchers are studying this species via satellite transmitters to determine the species' home range and specific habitat used (Chosset et al. 2004, p. 35). In Costa Rica and Nicaragua, 20 communities are participating in monitoring and protection activities of the great green macaw (Chosset and Arias 2010, p. 3). The primary objectives of the campaign have been to improve awareness by conducting workshops on the importance, threats, and conservation of the great green macaw and its habitat; to strengthen natural resources management by environmental authorities of both Nicaragua and Costa Rica, focusing on the local and international biological corridors; and to organize joint activities (Chassot et al. 2006, p. 83).
In Colombia, the NGO ProAves has made great progress in forming partnerships at the local, regional, and international levels to carry out bird conservation initiatives (Chassot et al. 2008, p. 23; Quevado-Gill et al. 2006, p. 18). Additionally, reforestation efforts have occurred (Monge et al. 2009, p. 263). These efforts have focused primarily within the reserves of the Colombian Civil Society Association Network (Quevado-Gill et al. 2006, p. 17). Conservation efforts and these workshops have been important because they have trained the community in sustainable development by linking local agricultural activities to the protection of natural resources (Quevado-Gill et al. 2006, p. 17).
Three NGOs are active in the conservation of this species in Ecuador: Pro-Forest Foundation in Guayas
In Panama, the Asociación Nacional para la Conservación de la Naturaleza (ANCON) began conservation work in 1991. The project has jointly worked on conservation efforts with Panama's Instituto Nacional de Recursos Naturales Renovables (INRENARE). ANCON has worked on training park rangers, marking and patrolling paths and park boundaries, acquiring property around parks and tree nurseries, and improving agricultural techniques (TNC 2011, p. 2).
Additionally, members from several NGOs participated in the great green macaw conservation workshop held in 2008. The purpose of the workshop was to bring together experts, to determine the priorities for the conservation of the species, and to develop a plan for its conservation (Monge et al. 2009, entire). We acknowledge the substantial effort under way by various NGOs in the range countries of this species to protect it and its habitat. Despite many efforts in place, the populations of the great green macaw continue to face many threats to its habitat.
Section 4 of the ESA (16 U.S.C. 1533) and implementing regulations (50 CFR 424) set forth procedures for adding species to, removing species from, or reclassifying species on the Federal List of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the ESA, a species may be determined to be endangered or threatened based on any of the following five factors:
A. The present or threatened destruction, modification, or curtailment of its habitat or range;
B. Overutilization for commercial, recreational, scientific, or educational purposes;
C. Disease or predation;
D. The inadequacy of existing regulatory mechanisms; and
E. Other natural or manmade factors affecting its continued existence.
In making this finding, information pertaining to the great green macaw in relation to the five factors in section 4(a)(1) of the ESA is discussed below. In considering what factors might constitute threats to a species, we must look beyond the exposure of the species to a particular factor to evaluate whether the species may respond to that factor in a way that causes actual impacts to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat, and, during the status review, we attempt to determine how significant a threat it is. The identification of factors that could impact a species negatively may not be sufficient to compel a finding that the species warrants listing. The information must include evidence sufficient to suggest that these factors, singly or in combination, are operative threats that act on the species to the point that the species may meet the definition of endangered or threatened under the ESA.
This rule focuses primarily on where this species has been documented, which is generally in parks and other areas with protected status and the peripheral zones. In some cases, we will evaluate the factor by country. In other cases, we may evaluate the factor by a broader region or context, for example, if we do not have adequate information specific to a particular country about this species. This is because often threats are the same or very similar throughout the species' range.
Throughout the range of this species, the factors impacting the great green macaw are generally very similar. The main factors affecting this species are habitat loss and degradation, and poaching (McGinley et al. 2009, p. 11; Berg et al. 2007; Chassot et al. 2006; Quevado-Gill et al. 2006, p. 16; Guedes 2004, p. 280). Both Central and South America continue to experience high levels of deforestation (FAO 2010, p. xvi). Habitat loss is primarily due to conversion of the species' habitat (generally forests) to agriculture and other forms that are not optimal for this species (Chosset and Arias 2010, p. 3; Monge et al. 2009, entire).
Almendro habitat, this species' primary food and nesting source, has declined significantly (Schmidt 2009, p. 16), particularly since the 1980s. Almendro and other tree species used by the great green macaw have been selectively cut down and removed from this species' habitat. Selective logging is the practice of removing one or two generally large, mature trees and leaving the rest. Throughout the range of the great green macaw, its habitat has declined primarily due to competition for resources and human encroachment (Guedes 2004, p. 279; Rodríguez-Mahecha and Hernández-Camacho 2002; Chassot and Monge 2002 in Rothman 2008, p. 509). Its habitat has continuously been clear-cut and converted to agriculture or human establishments, which is discussed in more detail below.
Tree species used by macaws tend to be large, mature trees with large nesting cavities. The practice of selective logging often targets old, large trees that macaws depend upon for nesting. In selective logging, the most valuable trees from a forest are commercially extracted (Asner et al. 2005, p. 480; Johns 1988, p. 31), and the forest is left to regenerate naturally or with some management until being subsequently logged again. Johns (1988, p. 31), looking at a West Malaysian dipterocarp forest, found that mechanized selective logging in tropical rainforests, which usually removes a small percentage of timber trees, causes severe incidental damage. He found that the extraction of 3.3 percent of trees destroyed 50.9 percent of the forest. Selective logging can cause widespread collateral damage to remaining trees, subcanopy vegetation, and soil, and the practice impacts hydrological processes, erosion, fire, carbon storage, and plant and animal species (Chomitz et al. 2007, pp. 117, 119; Asner et al. 2005, p. 480). Forests that were selectively logged 15 years prior became an open forest with skeletons of incidentally killed trees, serious gulley erosion, and vegetation on waterlogged sites that had been compacted by heavy vehicles (Edwards 1993, p. 9). Additionally, the availability of food sources for frugivores (fruit-eaters, such as the great green macaw) is reduced because the trees that contain nutritional sources are no longer there.
Selective logging is particularly devastating to the almendro tree, which is slow growing and may take centuries to reach sufficient size to harbor cavities (Schmidt 2009, p. 15), and which great green macaws need for both food and shelter. The almendro tree's wood is of great commercial value due to its strength and durability for flooring, roofing, and irrigation systems (Madriz-Vargas 2004, p. 8). Concern for this tree species was significant enough that the species was listed as CITES Appendix III by both Costa Rica and Nicaragua. Listing species in Appendix III enhances conservation measures enacted for the species by regulating international trade in the species. In general, shipments containing CITES-
Although the nest cavities that the macaws prefer (deep and dry) may take 10 to 20 years to form, the nests themselves can last for several decades (Chun 2008, p. 101). Even in undisturbed forests, suitable tree cavities are usually limited. As a result, each loss of a nest site can represent the loss of potentially many future chicks that could have been raised in each tree cavity.
Habitat degradation, particularly due to conversion of forest habitat to agriculture or plantations, is a major factor affecting great green macaws. The clearing of forests and buffer zones for the development of plantations for bananas, oil palms, cacao, coffee, soybeans, and rice destroys great green macaw nesting sites and exposes chicks to poaching for the pet trade (Botero et al. 2011, p. 92; Monge et al. 2009, pp. 26, 29, 43, 54; Waugh 1995, p. 2). By 2005, the world's tropical forest biomes had decreased to less than 50 percent tree cover (Donald et al. 2010, p. 26), in part due to the above activities. Tropical forest fragmentation due to these activities continues to be a concern. A discussion of habitat loss and degradation for each country follows.
Very little information is available about the great green macaw's status in Colombia (Botero-Delgadillo and Páez 2011, pp. 86, 90; Monge et al. 2009; Jahn
Colombia has experienced extensive deforestation in the last half of the 20th century as a result of habitat conversion for human settlements, road building, agriculture, and timber extraction (FAO 2010, p. 233; Armenteras et al. 2006, p. 354). A 23-year study, conducted from 1973 to 1996, found that these activities reduced the amount of primary forest cover in Colombia by approximately 3,605 ha (8,908 ac) annually, representing a nearly one-third total loss of primary forest habitat (Viña et al. 2004, pp. 123–124). More than 70 percent of rural land of Colombia located in former forestlands is now devoted to cattle grazing (Etter and McAlpine 2007, pp. 89–92). Beginning in the 1980s, habitat loss increased dramatically as a result of influxes of people settling in formerly pristine areas (Perz et al. 2005, pp. 26–28; Viña et al. 2004, p. 124). More recent studies indicate that the rate of habitat destruction is accelerating (FAO 2010, p. xvi). Between the years 1990 and 2005, Colombia lost approximately 52,800 ha (130,471 ac) of primary forest annually (Butler 2006a, pp. 1–3).
Primary forest habitats such as those used by the great green macaw throughout Colombia have undergone extensive deforestation. Viña et al. (2004, pp. 123–124) used satellite imagery to analyze deforestation rates and patterns along the Colombian-Ecuadorian border (in the Departments of Putumayo and Sucumbios, respectively) and found that between 1973 and 1996, a total of 829 km
In addition to the direct detrimental effect of habitat loss, there are several indirect effects of habitat disturbance and fragmentation, such as road building (Brooks and Strahl 2000, p. 10). Roads increase human access into habitat, facilitating further exploitation, erosion, and habitat destruction (Chomitz et al. 2007, p. 88; Hunter 1996, pp. 158–159). Research has documented that road building and other infrastructure developments in areas that were previously remote forested areas have increased accessibility and facilitated further habitat destruction and human settlement (Etter et al. 2006, p. 1; Álvarez 2005, p. 2,042; Cárdenas and Rodríguez-Becerra 2004, pp. 125–130; Viña et al. 2004, pp. 118–119; Hunter 1996, pp. 158–159). A study conducted on the effects of habitat fragmentation on Andean birds within western Colombia determined that 31 percent of the historical bird populations in western Colombia had become extinct or locally extirpated by 1990, primarily as a result of habitat fragmentation from deforestation and human encroachment (Kattan and Álvarez-Lopez 1996, p. 5; Kattan et al. 1994, p. 141). Greater exposure of soil to direct sunlight leads to factors such as drier soils and also creates a different growing environment. For example, the creation of roads changes the habitat by altering the distance of nesting and feeding habitat to the forest “edge,” increasing the amount of light exposure, and creating stress on (breeding) individuals in part due to noise and visual stimuli (Benítez-López et al. 2010, p. 1,308).
Ongoing coca cultivation has had a significant impact on forest cover in Colombia (Armenteras et al. 2006, p. 355; Fjeldså et al. 2005, p. 205; Page 2003, p. 2; Álvarez 2002, pp. 1,088–1,093). Colombia is one of the leading producers of coca, the plant species that provides the main ingredient of cocaine. Between 1998 and 2002, cultivation of illicit crops increased by 21 percent each year, with a parallel increase in deforestation of formerly pristine areas of approximately 60 percent (Álvarez 2002, pp. 1,088–1,093). Much of Colombia's coca is grown by farmers because it generates more income than any other crop (Butler 2006, pp. 1–2). Illegal drug crops are cultivated within the great green macaw's range (BLI 2014b, p. 4). Large-scale coca production has moved into the extensive rainforests of the Chocó state, which is considered to be a biodiversity hotspot in northwest Colombia and in the range of the great green macaw.
A 1990 United Nations study estimated that coca growers can make about $4,000 U.S. dollars per hectare (Tammen 1991, p. 12 in Page 2003, pp.
Drug eradication efforts in Colombia have further degraded and destroyed primary forest habitat by using nonspecific aerial herbicides to destroy illegal crops (BLI 2007d, p. 3; Álvarez 2005, p. 2,042; Cárdenas and Rodríguez Becerra 2004, p. 355; Oldham and Massey 2002, pp. 9–12). For example, in 2006, eradication efforts were undertaken on over 2,130 km
The ecological impacts of coca production are significant. Farmers clear forest to plant coca seedlings. Not only does each hectare of crop production result in the clearing of roughly 1.6 ha (4 ac) of forest, this practice also results in secondary effects such as the pollution of land and local waterways with the chemicals used to process coca leaves, including kerosene, sulfuric acid, acetone, and carbide (Butler 2006, pp. 1–2).
Most of the research on this species has been conducted in Costa Rica, where a very small population of this species remains. Despite Costa Rica's progress in conservation of this species, the historical breeding area for this species in Costa Rica has been reduced by 90 percent (Villate et al. 2008, p. 19; Chosset et al. 2004, p. 38). In 2004, approximately 30 reproductive pairs remained in the wild in Costa Rica (Madriz-Vargas 2004, p. 4). Up until the 1960s, Costa Rica's human population was growing by approximately 4 percent annually (World Bank 2011, unpaginated; Chun 2008, p. 6). Logging in the 1960s and 1970s decimated this species' habitat (Hardman 2011, p. 8). In the 1980s, the area near Puerto Viejo de Sarapiqui experienced severe deforestation and conversion to banana and pineapple plantations. By 1996, 52,000 ha (128,495 ac) of lowland forest had been converted to banana plantations (Brewster 2009, p. 8). The loss of forested area in the north has primarily been due to the production of livestock, forestry products, sugar cane, and (in more recent years) pineapple (Villate et al. 2008, p. 15).
In the mid-1980s, policies changed from granting incentives for livestock and cattle ranching to reforestation for forest management. However, these incentives led initially to the clearing of forests for conversion to exotic species plantations. As a result, forestry in Costa Rica (and Panama) has been dominated by the use of exotic species such as
In Costa Rica's border zone with Nicaragua, Landsat TM satellite images from 1987, 1998, and 2005 showed a fragmented landscape with remnants of natural ecosystems, which has implications for the conservation of this species. The images identified several classes of cover and land use (natural forest, secondary forest, water, agriculture and pasture, banana and pineapple plantations, and bare ground) (Chassot et al. 2009, pp. 8–9). These researchers noted that the annual rate of deforestation was 0.88 percent for the 1987–1998 period, and 0.73 percent for the 1998–2005 period, taking into consideration recovery of secondary forest. The researchers also noted that, in the area studied, deforestation rates were higher than national averages for the same time span (Chassot et al. 2009, p. 9).
In the 1990s, plans to form the San Juan-La Selva Biological Corridor began in response to the significant decrease in habitat available to the great green macaw and its decline in population numbers. In 1993 and 1994, about 1,000 km
Costa Rica was the only country in Central America that had a positive overall increase in forest area during the period 2000–2005 (FAO 2010, p. 19; FAO 2007). Intense efforts are under way in Costa Rica to conserve and recover this species, in part by addressing habitat degradation. In some areas, the commercial use of the almendro tree is now being replaced by synthetic material due to conservation efforts focused on the great green macaw. In some areas, landowners are being paid to protect and “adopt” almendro trees, and several ecotourism projects have developed using these trees and the macaws as part of the ecotourism attraction. As of 2009, 12 nesting trees had protection agreements (Brewster 2009, p. 10). Still, habitat degradation continues to impact the great green macaw (Villate et al. 2008, p. 14), and even trees that are designated as protected are either cut down or targeted for poaching (Chun 2008). Logging still occurs in the remnant forests of both the northern zone of Costa Rica and southeast Nicaragua (Chassot and Arias 2011, p. 1; Monge et al. 2009, pp. 128–129). Logging, while it may be illegal, has also been documented in the buffer zone of the Indio-Maíz Biological Reserve (Monge et al. 2006, p. 10). The buffer zone is within the breeding range of the great green macaw and likely affects the species' viability. Additionally, both primary and regrowth forest in the San Juan–La Selva Biological Corridor
Gold mining may also affect conservation efforts for the great green macaw in Costa Rica. In 2001, the Ministerio del Medio Ambiente y Energía (MINAE) granted a mining concession (Resolution R–578–2001–MINAE) in San Carlos to clear nearly 202 ha (500 ac) of old-growth rainforest for a project (Villate 2009, p. 57;
In adjacent Nicaragua, the area of influence of the mining project is also part of the buffer zone of the two reserves: San Juan River Biosphere Reserve and the Indio-Maíz Biological Reserve. These areas contain features of endemism and species compositions that are unique (Sistema Nacional de Áreas de Conservación (SINAC) 2007 in Villate et al. 2008, p. 58). Although Crucitas is not part of the current nesting area of the great green macaw, it is only about 10 km (3 mi) southeast of the historical distribution of the species. The mining activities are likely to affect the current population of the great green macaw by impacting its habitat as well as ongoing conservation efforts. The project lies within a geographical area that is of critical importance to the conservation of this species. Additionally, the removal of more primary forest cover would further reduce the ability to maintain connectivity along the San Juan–La Selva Biological Corridor, which continues to be subjected to fragmentation (Villate 2008, p. 58). As of November 2010, a court ruled that the open-pit gold mine was improperly permitted (
Although the population of great green macaw is reported to be stable and slowly increasing in the Cerro Blanco Protected Forest, it is an extremely small population (Monge et al. 2009, p. 256). There are likely fewer than 100 individuals remaining in Ecuador. In this part of its range, three tree species are noted as crucial for the survival of the species:
In 2002, the Government of Ecuador authorized the conversion of 50,000 ha (123,553 ac) of tropical forest in the Choco region of western Ecuador into oil palm plantations (ELAW 2005, pp. 1–2). As of 2005, 374 ha (924 ac) of native forests were being cut daily (Horstman 2005, p. 8). Clearing forests for this monoculture crop has threatened thousands of endemic species and introduced dangerous pesticides to local ecosystems (Albán and Cárdenas 2007, p. 43). For example, in Esmeraldas Province, pesticides are used intensively in a 36,000-ha (88,958-ac) area of oil palm plantations (ELAW 2005, pp. 1–2). Local villages cite problems from the pesticides and effluents from the processing plants.
The Food and Agriculture Organization of the United Nations (FAO) reported in 2010 that, in Ecuador, “planted forests are predominantly composed of introduced species,” such as rubber plantations and other nonnative species (FAO 2010, p. 93), which do not provide appropriate habitat and nutritional needs for the great green macaw. Despite these activities, due to the efforts of the ProForest Foundation—the NGO in charge of the reserve—the population in the Cerro Blanco forest preserve is reported to be stable (Horstman 2011, p. 17). The Cerro Blanco forest preserve is a small area that is being managed particularly for this species. It is jointly owned by the ProForest Foundation and a cement company, Holcim, as mitigation for its nearby limestone quarries. Reserve managers are converting former cattle pasture to native tree farms, which they use to help restore dry tropical forest in other locations, including a corridor to nearby patches of forested areas (Horstman 2009 pers. comm.). Despite the conservation efforts in place, logging, poaching, and illegal land settlement continue to affect the population in the Cerro Blanco Protected Forest (Horstman 2011, p. 17; Fundacion Pro-Bosque, undated, p. 3). A conservation strategy for this species recommends that a ban be instituted on the cutting and commercialization of the three tree species described above that were noted as crucial for the great green macaw's survival (Monge et al. 2009, pp. 256–258). However, deforestation, encroachment, and habitat degradation activities such as these continue (Horstman 2011, p. 17).
Another threat to the macaw's population in this reserve is the rapid expansion of the city of Guayaquil. Squatter settlements develop on the city's outskirts and encroach the forest (Fundacion ProBosque undated, p. 3). Illegal settlements are a problem, and squatter communities have attempted to take over property within Cerro Blanco. The local NGO conducts educational awareness programs to mitigate these activities. An example of awareness campaign activities is educating the local communities about the effect on their water supply when they destroy forested areas (Horstman pers. comm. in Hardman 2011, p. 13). However, pressures to this species' habitat continue to impact the species.
In Honduras, threats have included illegal trafficking of this species and deforestation due to agriculture, cattle grazing, and logging (Devenish et al. 2009, p. 256). The threat of deforestation is particularly important because a
The great green macaw is believed to exist in the Río Plátano Biosphere Reserve within the watershed of the Plátano River (Monge et al. 2009, p. 8). The area is also known as the “Mosquitia Hondureña,” which is 500,000 ha (1,235,527 ac) in size. The reserve serves as protection to the 100-km (62-mi) long Plátano River watershed in addition to protecting parts of the Paulaya, Guampu, and Sicre rivers (Devenish 2009, p. 256). Several indigenous tribes such as the Miskito, Tawahka, Pech, Garífunas, and “Mestizos” use this area for their traditional livelihoods. Although this reserve was designated as a World Heritage Site, pressures to the reserve area for its resources continue (TNC 2011, unpaginated). In 2011, the Río Plátano Biosphere Reserve was added to the list of World Heritage Sites in danger due to encroachment (UNEP–WCMC 2011, p. 1).
In the Río Plátano Biosphere Reserve of Honduras, the unregulated extraction of timber and mass production of bananas has caused an alarming decline of great green macaw populations (Devenish et al. 2009, p. 256). The deforestation in Honduras is occurring as a result of an increase in the human population, which requires clearing areas for home development as well as wood products (Devenish et al. 2009, p. 256). The annual human population growth rate as of 2011 was estimated to be 1.09 percent (U.S. Department of State 2011, unpaginated). Palacios and Brus Laguna, towns on the coast approximately 5 km (3.1 mi) from the park on either side of the reserve, are likely contributing to the pressures such as agriculture and logging that are occurring illegally in the reserve.
In Nicaragua, great green macaws face reductions in populations due to illegal extraction of timber and agricultural expansion (McGinley et al. 2009, pp. 13, 33, 35; Jeffrey 2001, pp. 1–5). Overall, there is a lack of information about the status of the great green macaw population and its habitat in Nicaragua (Monge et al. 2010; Monge et al. 2009, pp. 52–53). However, a population of the great green macaw is known to occur in the Indio-Maíz Biological Reserve, located in Nicaragua just across the San Juan River at the northeastern border of Costa Rica (Monge et al. 2009, p. 51), where suitable habitat for this species remains. This reserve, which is believed to be one of the few strongholds for the great green macaw, is nearly 264,000 ha (652,358 ac) in size. It is likely that the Indio-Maíz Biological Reserve contains extensive forest areas with high densities of almendro trees (Chun 2008, p. 94) and, therefore, is critical to this species' survival. Chun suggests that many areas in Nicaragua may exceed the minimum great green macaw nesting requirement of 0.20 trees per hectare within the breeding territory. Although the Indio-Maíz Biological Reserve is considered one of Nicaragua's best preserved forested areas and has limited access, its buffer zone has recently been under assault from activities such as loggers in search of lumber and illegal farming of
Deforestation is one of the major threats to biodiversity in this region; one steadily increasing form is the conversion of forest into agricultural or pastural lands (Chassot et al. 2006, p. 84). In Nicaragua, between 1990 and 2005, 1.35 million ha (3.34 million ac) of forested areas were converted to agriculture or were deforested due to other reasons such as logging (FAO 2010, p. 232; FAO 2007). Much of Nicaragua has protected status. In 2005, approximately 36 percent of Nicaragua's forested area was designated as protected or in some form of conservation status (FAO 2007). Additionally, in 2007, there were 72 protected areas in Nicaragua's National System of Protected Areas (Castellon 2008, p. 19). However, 88 percent of Nicaragua's area designated as forest is privately owned (FAO 2010, p. 238) and, therefore, is not protected. Additionally, much of the logging that occurs is illegal and is not monitored (Pellegrini 2011, p. 21; Richards et al. 2003, p. 283).
As an example, the Bosawas Reserve is one of the areas believed to contain great green macaws as well as suitable habitat for a viable population. It was designated a reserve in 1979, in response to the advance of the agricultural frontier (Cuéllar and Kandel 2005, p. 9). However, during the 1980s, the area was not managed; it was the battleground for the armed conflict between the Sandinistas and the Contras (Cuéllar and Susan Kandel 2005, p. 9). In October 1991, Bosawas was declared a National Natural Resource Reserve through Executive Decree No. 44–91. Despite its designation as a protected area, encroachment and habitat degradation still occur (McCann et al. 2003, p. 322). In Bosawas, indigenous tribal communities have rights to use the forests under the Autonomy Statute of 1987 (Cuéllar and Kandel 2005, p. 11). As of 1998, the indigenous population was approximately 9,200 in or near the Bosawas reserve (Stocks et al. 2007, p. 1,497). In 2005, the Nicaraguan Government granted land titles to 86 indigenous Miskitu and Mayangna groups in Bosawas and contiguous indigenous areas (Stocks et al. 2007, p. 497). Generally, these indigenous communities manage the forests well and want to maintain their traditional way of life. However, “mestizo” communities were encouraged to settle in the area that is now the reserve's buffer zone during the period when lands were being converted to plantations. Both the mestizo and indigenous communities depend on access to land to ensure their livelihoods. However, the mestizo communities convert primary forest to agricultural or livestock uses (Cuéllar and Kandel 2005, p. 13), while the indigenous communities have less impact on the ecosystem. Land rights disputes are common in these areas, and land use rights are often unclear. The Government of Nicaragua is attempting to manage these issues (Pellegrini 2011, p. 21), but conflict and practices that degrade the great green macaw's habitat persist both in the Bosawas Reserve and in other areas within the range of the species.
One of the factors contributing to deforestation in this area is a high rate of poverty (Pacheco et al. 2011, p. 4). Nicaragua is the poorest country in Central America (CIA World Factbook 2014). In part, due to the high rate of poverty, the great green macaw continues to face threats to its habitat.
In Panama, this species is believed to primarily exist in the Darién region, which borders northern Colombia (Angeher 2004,
A 2006 report indicated that the advance of the agricultural frontier and “spontaneous colonization” occurring at a rate of 50,000 to 80,000 ha (123,500 to 197,700 ac) per year is rapidly shrinking Panama's forests and protected areas (McMahon et al. 2006, p. 8). Prior to its formal designation in 1990, La Amistad National Park, which spans the border between Costa Rica and Panama, experienced impacts from cattle ranching, timber extraction, burning, and illegal settlements (UNEP–WCMC 2011, p. 7). Trails, human encroachment, roads, grazing, and hunting continue in this area and affect this species' habitat (TNC 2012, unpaginated; UNEP–WCMC 2011, p. 7). Soil and water resources have been depleted due to traditional agricultural practices and inadequate conservation measures. Indigenous production systems, with their low-intensity land use, long rotation periods, and plentiful forests for hunting and gathering, are increasingly becoming unsustainable due to economic pressures. These indigenous production systems are being replaced by farming systems that emphasize monoculture without rotation, which leads to depleted soils and encourages greater expansion of the agricultural frontier. These threats are exacerbated by rural poverty that drives populations in search of areas with high levels of globally significant biodiversity (Pacheco et al. 2011, pp. 4, 18). As a result of competition for resources, many farmers and indigenous people have emigrated to the Darién and Bocas del Toro provinces, where the great green macaw is believed to exist in larger numbers than in other parts of the species' range. Unsustainable land practices, the lack of capacity by both public and private stakeholders to encourage sustainable land use, infrastructure development, and the lack of management plans further exacerbate the degradation of this species' habitat.
Darién forests are under pressure from the expanding agricultural frontier and related colonization (TNC 2011, p. 1; McMahon 2006, p. 8). The region's human population is growing at a rate of about 5 percent a year. Loss of forest cover is often linked to agricultural expansion, which often follows new or improved roads, and which results in increased access to forests. Slash-and-burn agriculture has resulted in huge tracts of deforested land. Other factors that affect the stability of great green macaw populations include the National Authority for the Environment's (ANAM) inability to fund programs for protected areas and buffer zones, and the extraction of other minerals and building materials, whether legal or illegal (Angehr et al. 2009, p. 291). Logging and mining is legally restricted in the area; however, logging still occurs outside the Darién reserve, and the practice encroaches on remaining forest cover in the buffer zone. Problems in or adjacent to protected areas include illegal clearing for development, agriculture, and cattle grazing; road construction; and extraction of minerals or construction materials (Devenish et al. 2009b, p. 291).
The presence of gold mines in the Darién Region, particularly the Cerro Pirre area, was also indicated to be a threat to the species. Significant mining activities in this area were conducted prior to the 18th century. The clearing of forests to create roads for mining facilitates the transport of materials and personnel in and out of the mining zones (Robbins et al. 1985, pp. 200, 202). Roads exacerbate deforestation practices such as logging and conversion to agriculture or other land uses, as well as colonization. This area is now an ecotourism site; as of 1985, there is now second-growth forest recovery from the gold mines that had been abandoned during the 18th century. It does not appear that mining in this area still occurs, and, therefore, mining is not currently impacting the species.
The global population of great green macaws is decreasing due to the loss of much of the older forested areas, thus reducing high-quality habitat for this species, and relegating it to relatively small and isolated patches throughout its range; however, suitable habitat remains in some protected areas in Central and South America. Habitat degradation poses a significant threat throughout the range of the great green macaw, which is especially vulnerable to the effects of isolation and fragmentation because it tends to mate for life, it has a small clutch size and specialized habitat requirements, and its populations are small and decreasing.
The great green macaw is naturally associated with unfragmented, mature, forested landscapes, and is considered a habitat specialist that selects areas of contiguous mature forest in Central America and parts of northern South America (Monge et al. 2009; Madriz-Vargas 2004, p. 7). This species requires
Because this species has an extremely small and fragmented population, poaching, while apparently uncommon, remains a concern (Botero-Delgadillo and Páez 2011, p. 13; Monge et al. 2009, pp. 26, 40, 106). Removal of this species from the wild has a significant detrimental effect to this species because this species tends to mate for life and only produces 1 or 2 eggs annually. The species has been heavily poached in the wild historically and is still trafficked for the pet trade in Honduras and Nicaragua (Anderson 2004, p. 453;
Data obtained from the United Nations Environment Programme–World Conservation Monitoring Center (UNEP–WCMC) CITES Trade Database show that, during the 4 years the great green macaw was listed in Appendix II, 26 live great green macaws (and an additional eight feathers) were reported to UNEP–WCMC as (gross) exports. In analyzing the data, it appears that several records may be overcounts due to slight differences in the manner in which the importing and exporting countries reported their trade. It is likely that the actual number of live great green macaws in international trade during this period was 22. All of the live birds were reported with the source “unknown.” Exports from range countries included six live birds from Panama and five live birds from Nicaragua (UNEP–WCMC 2011).
During the more than 28 years following the transfer of the species to Appendix I (August 1985 through December 2013, the last year for which complete data were available at the time the following numbers were compiled), the UNEP–WCMC database shows 920 live birds in international trade. However, because it is some over-counts likely occurred in the database due to slight differences in the manner in which the importing and exporting countries reported their trade, it is likely that the actual number of live great green macaws in international trade during this period was 831 (U.S. CITES Management Authority 2015). Of these, 776 were reported to be captive-bred or captive-born, 5 were reported as wild, and 15 were reported as “pre-Convention.” The source of the remaining live birds is unknown. Exports of live birds from range countries included 17 from Costa Rica, 10 from Ecuador, 12 from Nicaragua, and 6 from Panama. Note also that some of these birds may be personal pets that are counted more than once.
Historically, the pressure to remove this species from the wild for the pet trade has contributed significantly to the decline in population numbers for this species. Poaching continues to occur in this species' range, particularly in Nicaragua (Castellon 2008, pp. 20, 25; Kennedy 2007, pp. 1–2; BLI 2007, p. 1). The majority of information available for Central America regarding poaching and the sale of parrot species were focused in Nicaragua (Herrera-Scott 2004, pp. 1–2). A study published in 2004 assessed the origin and local sale and export of parrots and parakeets in Nicaragua (Herrera-Scott 2004, pp. 1–2), and focused on the buffer zone of the Indio-Maíz Biological Reserve, a critical area for the great green macaw. The study followed the marketing chain from rural areas to the capital city. Most of the wildlife trade was found to occur in Managua. As of 2000, poaching was still occurring in the buffer zone of the Indio-Maíz Biological Reserve (Herrera-Scott 2004, p. 6). An estimated 7,205 parrots were sold during that year (Herrera-Scott 2004, p. 1). The legal export of wildlife species from Nicaragua in general decreased significantly between 2002 and 2006 (McGinley 2009, p. 16). Despite the decrease in legal trade, in 2007, a number of parrot species could be still found for sale along roads to tourists (Kennedy 2007, pp. 1–2; BLI 2007, p. 1). Nicaragua is the poorest country in Central America and the second poorest in the Hemisphere, and has widespread underemployment and poverty (CIA World Factbook 2011, unpaginated; FAO 2011, p. 1). Approximately 17 percent of its population lives in extreme poverty (Castellon 2008, p. 21). Many of Nicaragua's citizens live in rural areas where they usually earn a living from agriculture and fishing, and the sale of a parrot can significantly increase their earnings. As mentioned above under the Factor A discussion, incomes in the Bosawas region of Nicaragua were found to average under $800 per family per year as of 2007 (Stocks et al. 2007, p. 1,498). The great green macaw was found for sale at an average of $200 to $400 U.S. dollars (USD) (Fundacion Cocibolca in BLI 2007, p. 1). For perspective, in the United States, captive-bred specimens can sell for up to $2,500 USD (Basile 2009, p. 6). The high commercial value, especially in relation to the average family income, indicates that it is still worthwhile to poach and sell this species. Due to the extreme poverty in Central America, particularly in Nicaragua, and due to the high commercial value of great green macaws, poaching continues to be a significant concern for this species.
Poaching can be intertwined with habitat destruction (Factor A). Some poachers still cut down trees to obtain nestlings (Hardman 2011, p. 13; Chun 2008, p. 105). This practice of cutting down trees to remove nestlings is particularly devastating to small populations reliant upon certain types
Poaching for the pet bird trade can destroy pair bonds, remove potentially reproductive adults from the breeding pool, and have a significant effect on small populations (Kramer and Drake 2010, pp. 511, 513). This is in part because this species mates for life, is long-lived, and has low reproductive rates. These traits make them particularly sensitive to the effects of poaching (Lee 2010, p. 3; Thiollay 2005, p. 1121; Wright et al. 2001, p. 711). In some areas in Costa Rica, there were no recent reports of nest poaching due to conservation efforts (Villate et al. 2008, p. 23). However, despite conservation efforts in place, the conservation workshop for
Conservation efforts by various entities working to ensure the long-term conservation of the great green macaw may result in its population slowly increasing (Monge et al. 2010, pp. 12–13). However, overall, the best available information indicates that the population is still declining (Botero-Delgadillo and Páez 2011, p. 91; Monge et al. 2009). The species still faces threats such as habitat loss and poaching. Often, there is a lag time after factors have acted on a species (
We have no evidence of significant adverse impacts to wild populations of great green macaws due to disease. Diseases are a normal occurrence within wild populations. They do not occur to an extent that they are a threat to this species, particularly because the populations are widely dispersed, which provides an element of resiliency to the overall population. We conclude, based on the best available scientific and commercial information, that disease is not a threat to the great green macaw now or in the future.
In addition, we have no information indicating that predation threatens the great green macaw. This is the second largest New World macaw, and the best available information does not indicate that predation is a factor that negatively affects this species. While predators undoubtedly have some effect on fluctuations in great green macaw numbers, there is no evidence to suggest that predation has caused or will cause long-term declines in the great green macaw population. Therefore, we have determined that this factor does not pose a threat to the great green macaw, now or in the future.
Regulatory mechanisms affecting this species that we evaluated could potentially fall under categories such as wildlife management, parks management, or forestry management. We primarily evaluated these regulatory mechanisms in terms of nationally protected parks because this is where this species generally occurs. A summary of the status of forest policies, regulatory mechanisms, and laws in the range countries of the great green macaw is below. The most authoritative source for assessing the state of forests is the United Nations Food and Agriculture Organization's Forest Resources Assessment (FAO) (Chomitz
In 2007, FAO noted that many countries (in the range of the great green macaw) had enacted new forest laws or policies within the past 15 years, or had taken steps to strengthen their existing legislation or policies. Among countries that had enacted new forest legislation were Costa Rica, Honduras, Nicaragua, Panama, Colombia, and Ecuador (FAO 2007, p. 43). Despite the existence of these laws and policies, the populations of the great green macaw are still negatively affected by habitat loss, encroachment, and, to a lesser extent, poaching.
Throughout this species' range, we found that many of the threats that occur to this species are the same or similar. Threats generally consist of various forms of habitat loss or degradation (see Factor A discussion, above). Each range country for this species has protections in place, but for reasons such as limited budgets and limited enforcement capabilities, the laws and protections are generally not able to adequately protect the species. Our analysis of regulatory mechanisms is discussed essentially on a country-by-country basis, beginning with Colombia, and is summarized at the end.
Colombia has enacted numerous laws to protect species and their habitats. This species exists predominantly in areas that are protected, and Colombia has several laws that pertain to protected areas. Some of these laws include:
The great green macaw is listed as vulnerable on Colombia's Red List (Renjifo et al. 2002, p. 524). Resolution No. 584 of 2002 provides a list of Colombian wildlife and flora that are considered “threatened.” Colombia defines threatened as those species whose natural populations are at risk of extinction if their habitat, range, or the ecosystems that support them have been affected by either natural causes or human actions. Threatened species are further categorized as critically endangered, endangered, or vulnerable. Colombia defines a critically endangered species as one that faces a very high probability of extinction in the wild in the immediate future, based on a drastic reduction of its natural populations and a severe deterioration of its range. An endangered species is one that has a high probability of extinction in the wild in the near future, based on a declining trend of its natural populations and a deterioration of its range. A vulnerable species is one that is described as not in imminent danger of extinction in the near future, but it could be if natural population trends continue downward and deterioration of its range continues (EcoLex 2002, p. 10).
Colombian Law No. 99 of 1993 created the Ministry of the Environment and Renewable Natural Resources and the National Environmental System (SINA). SINA sets out the principles governing environmental policy in Colombia, and provides that the country's biodiversity is protected and used primarily in a sustainable manner (Humboldt Biological Resources Research Institute 2011, unpaginated; EcoLex 1993, p. 2). SINA is a set of activities, resources, programs, and institutions that allow the implementation of environmental principles. Consistent with the Constitution of 1991, this management system was intended to be decentralized. However, an environmental assessment study conducted for the World Bank in 2006 found that Colombia's current decentralized system is inadequate as implemented (Blackman et al. 2006, p. 15). Although Law 99 assigns the role of leading and coordinating environmental management in Colombia to the Ministry of Environment (Ministerio del Medio Ambiente, MMA), Colombia's Autonomous Regional Corporations (CARs) have the role of implementing environmental laws (Blackman et al. 2006, pp. 39–40, 42). CARs have responsibility for both management of natural resources and economic development (Ministry of Environment et al. 2002).
In 2006, an analysis of the effectiveness of Colombia's CARs was conducted for the World Bank. In Blackman et al. 2006's analysis, they reported that many individuals both inside and outside the government felt there was a lack of effectiveness of SINA. For example, Colombia's efforts to eradicate the coca trade has not been effective at reducing the amount of coca being cultivated (Page 2003, p. 2; also see
This species' habitat occurs to some extent in areas designated as protected by SINA, including five national parks (Rodríguez-Mahecha 2002a). Two parks are particularly significant: Katíos National Park and Utría National Park. Although this species likely exists in at least these two parks (Botero-Delgadillo and Páez 2011, p. 92), no protective measures have been actually implemented to curb human impacts on the species' habitat by the indigenous and farming residents within these protected parks (Botero-Delgadillo and Páez 2011, p. 92). Cultivation of plants for cocaine production is known to occur within the boundaries of Katíos National Park. The cultivation of illegal crops (particularly coca) poses additional threats to the environment beyond the destruction of montane forests (Balslev 1993, p. 3). Coca crop production destroys the soil quality by causing the soil to become more acidic, depletes the soil nutrients, and ultimately impedes the regrowth of secondary forests in abandoned fields (Van Schoik and Schulberg 1993, p. 21; also see
Despite Colombia's numerous laws and regulatory mechanisms to administer and manage wildlife and their habitats, the great green macaw continues to face many threats to its habitat. There is little information available about the species (Botero-Delgadillo and Páez 2011, p. 90), and the most recent information indicates that no conservation action has been proposed for this species (Botero-Delgadillo and Páez 2011, p. 88). On-the-ground enforcement of existing wildlife protection and forestry laws, and oversight of the local jurisdictions implementing and regulating activities, are ineffective at mitigating the primary threats to the great green macaw. As discussed under
In Costa Rica, there are more than 30 laws related to the environment (Peterson 2010, p. 1). A list of the environmental laws in Costa Rica is available at:
In the early 1990s, Costa Rica had one of the highest deforestation rates in Latin America (Butler 2012, p. 3). Forest cover in Costa Rica steadily decreased from 85 percent in 1940, to around 35 percent today, according to the FAO's State of the World's Forests (Butler 2012, unpaginated; FAO 2010, pp. 227, 259; FAO 2007). Historically, clearing for agriculture, particularly for coffee and bananas, in addition to cattle pastures was the main reason for Costa Rica's rainforest destruction. During the 1970s and early 1980s, vast expanses of rainforest had been burned and converted to cattle pastures. Today, although deforestation rates of natural forest have dropped considerably, Costa Rica's remaining forests still experience illegal timber harvesting (in protected areas) and conversion to agriculture (in unprotected zones) (Butler 2012, unpaginated; Monge et al. 2009, p. 121; FAO 2007). Despite its abundance of conservation legislation, Costa Rica has undergone significant periods of deforestation (Butler 2012, unpaginated; FAO 2007, p. 38), which have had a severe effect on the great green macaw.
In Costa Rica and Nicaragua, the great green macaw is highly dependent on the almendro tree. This tree species is now protected by law in Costa Rica; cutting any almendro tree over 120 cm (47.2 in) or less than 70 cm (27.6 in) in diameter is prohibited (Rainforest Biodiversity Group 2008, p. 1). The remaining Costa Rican populations of almendro trees are concentrated in the northeastern corner of the country from the San Juan River south to Braulio Carrillo National Park (Hanson 2006, p. 3). Although little forest remains undisturbed in this region, many almendro trees were left standing in fragments or pastures, partly due to the extremely dense nature of the tree's wood and the difficulty in cutting down these trees.
As a result of the great green macaw's dependence on almendro trees, conservation efforts for the great green macaw have focused on this tree species. A decree was enacted in 2001 to limit extraction of the almendro tree. Harvest was temporarily suspended until a study could be conducted to evaluate the status of this primary food and nesting source in relation to the great green macaw (Chosset et al. 2002, p. 6). According to Costa Rican legislation (Decree No 25167–MINAE), the removal or logging of almendro trees had been illegal in the area between the San Carlos and Sarapiqui Rivers (Madriz-Vargas 2004, p. 9). The objective of the restrictions placed on extraction of almendro trees was to increase the number of nesting sites for the great green macaw and to prevent the tree from becoming extinct; however, forest clearings continued to occur at an alarming rate due to the lack of resources to protect biological reserves (Madriz-Vargas 2004, p. 8). For example, researchers reported in 2003 that, of the 60 great green macaw nests identified since the great green macaw conservation project was initiated in 1994, 10 had been cut down by forest engineers working in forest management plans (Monge and Chassot 2003, p. 4). In 2008, Costa Rica's Supreme Court stated that MINAE must abstain from the continuation or initiation of the use, exploitation, or extraction of the almendro tree (Chun 2008, p. 113). In Costa Rica, fines for those who cut down almendro trees have been proposed as a measure, although penalties reportedly have not been instituted (Botero-Delgadillo and Páez 2011, p. 92).
In the two core areas where the great green macaw exists in Costa Rica, conservation activities are under way, and the breeding populations are being closely monitored. Quebrada Grande is a community-operated, 119-ha (294-ac) reserve in the center of great green macaw habitat. Additionally, the National Green Macaw Commission was formed in 1996 to protect and manage this species' habitat. This commission was formed in response to the severe decline of the great green macaw population, and included 13 government agencies, NGOs, and the Sarapiquí Natural Resources Commission (CRENASA). This conservation effort was formalized by Executive Order No. 7815–MINAE of 1999. The group served as an advisory body to MINAE regarding environmental issues in the northern zone of Costa Rica that affect the great green macaw (Chassot and Monge 2008 in Villate et al. 2008, p. 22). Conservation efforts are still in progress; in 2008, a workshop was held to bring together species experts and government officials to identify priorities and goals in order to conserve the species (Monge et al. 2009, entire).
Additionally, a corridor was created in 2001, with the goal of maintaining connectivity and biodiversity between protected areas in southeastern Nicaragua, the Protected Conservation Area Arenal Huetar North (ACAHN), and Conservation Area of the Central Volcanic Cordillera (ACCVC) in Costa Rica. The primary purpose was to promote the creation of protected wilderness and encourage habitat protection necessary to preserve and
In 2005, the Maquenque National Wildlife Refuge (MNWR) was established primarily to protect breeding habitat for the great green macaw. Approximately 43,700 ha (107,985 ac) of land identified as potential great green macaw breeding habitat lies within the boundaries of MNWR (Chun 2008, p. 113). This region was targeted because it contains several large nesting trees used by great green macaw breeding pairs. MNWR protects foraging habitat that may be critical during the great green macaw's breeding season. MNWR is within the larger San Juan La Selva (SJLS) Biological Corridor, and its goal is specifically to connect protected areas in southern Nicaragua to those in central Costa Rica (Chun 2008, p. 98). However, even in this refuge, habitat degradation continues to occur. A RAMSAR (the Convention on wetlands) report on this refuge (which is a RAMSAR site), indicated that the main threats there are agricultural and forestry activities, which are most prevalent near the Colpachí and Manatí lagoons (RAMSAR 2012, p. 1).
In summary, as of 2002, less than 10 percent of the great green macaw's original range was estimated to exist in Costa Rica (Chosset et al. 2002, p. 6). The great green macaw greatly depends on the almendro tree as its primary food and nesting resource. However, due to Costa Rica's complex deforestation history, the great green macaw remains imperiled primarily due to habitat fragmentation, degradation, and habitat loss. In 2004, a maximum of 35 pairs were estimated to be breeding in northern Costa Rica (Chosset et al. 2004, p. 32), and the population in this country appears to have increased since a conservation program and regulatory mechanisms have been in place. Costa Rica's population was estimated to be approximately 300 birds in 2010 (Chassot 2010 pers. comm. in Hardman 2011, p. 11; Monge et al. 2010, pp. 13, 22). Despite the apparent increase in the population in Costa Rica, the population is extremely small and has experienced significant decline in available habitat over the past 60 years.
In addition to the historical loss of habitat, the species continues to face threats such as habitat degradation. This species requires a complex suite of plant species over the course of a year for its nutritional needs. Pressures to its habitat such as logging, encroachment, habitat degradation, and likely other factors continue within this species' range. Despite conservation efforts in place, such as conservation awareness programs, research, and monitoring, the population has declined significantly over time and is still only estimated to be approximately 300 individuals. Because this species mates for life and has a small clutch size, the loss of any one individual can have a significant effect on the population. Costa Rica has implemented many environmental laws in conjunction with conservation efforts to protect species, particularly the great green macaw and its habitat. The situation of this species is still precarious, and any of the threats acting on the species, such as habitat loss and degradation, poaching, or other unknown factors, could have a significant effect on the population in Costa Rica because it is so small, and because of its life-history characteristics. The existing regulatory mechanisms, as implemented, are insufficient in Costa Rica to adequately ameliorate the current threats to this species.
As of 2006, the Ecuadorian Government recognized 31 various legal categories of protected lands (
In 2004, the Ecuadorian Minister of the Environment signed a ministerial decree forming the National Strategy for the In-Situ Conservation of the Guayaquil Macaw (
• Applied investigation for the conservation of the species;
• Management of the conservation areas where the presence of the Guayaquil macaw has been confirmed, incorporating new areas that are critical for conservation of the species, and providing connecting corridors between the areas;
• Reforestation with appropriate tree species in its habitat;
• Incentives and sustainable alternatives for communities and private property owners within its range; and
• Conservation of the Guayaquil macaw.
Despite the existence of this strategy, the great green macaw still faces significant threats in Ecuador (Horstman 2011, p. 12). There are likely fewer than 100 individuals of this subspecies remaining in Ecuador. Ecuador recognizes that threats exist to its natural heritage, not only to this species, but to all of its wildlife. In 2008, Ecuador approved Article 71 of its Constitution, which states, “Nature has a right to integrally respect its existence as well as the maintenance and regeneration of its vital cycles, structures, functions and evolutionary processes.” Article 73 also mandates, “measures of precaution and restriction for all activities that could lead to the extinction of species, the destruction of ecosystems, or the permanent alteration of natural habitats.”
Ecuador has made significant strides in conservation. Ecuador's Article 103 of Book IV on Biodiversity decreed that: “It is prohibited, on any day or time of the year, to hunt species, whether birds or mammals, that constitute wildlife and that are listed in Appendix 1 of the present Record that are qualified as threatened or endangered. Hunting is likewise prohibited in certain areas or zones while the bans are in effect” (Monge et al. 2009, p. 256; Unified Text of the Secondary Legislation of the Ministry of the Environment). Despite the recent advances made in conservation efforts, Ecuador has gone through periods of devastating habitat loss and degradation, which affected the great green macaw's habitat such that it only remains in two fragmented and small areas. It is unclear how sustainable the remaining habitat is, particularly because this species has specialized feeding requirements and requires a large range to provide its nutritional needs.
The National Strategy for the In-Situ Conservation of the Guayaquil Macaw was revised in 2009. As a result, the first national census of great green macaw was conducted in Ecuador in late 2010 (Horstman 2011, pp. 16–17). The Cerro Blanco Protected Area has been managed by the Pro-Forest Foundation, an NGO, for approximately 20 years (Horstman 2011, unpaginated).
The National Conservation and Forestry Institute (ICF) (formerly the Protected Areas and Wildlife Department, established in 1991) is responsible for regulating natural resources and management of protected areas. The National Protected Areas System includes 17 national parks created between 1980 and 2007. As of 2009, there were 79 protected areas (Triana and Arce 2012, p. 1). In 1991, the Protected Areas and Wildlife Department (which is now the National Conservation and Forestry Institute (ICF)) was designated to manage natural resources and protected areas (Devenish et al. 2009, p. 257; Decree no. 74–91, 1991). Prior to 1991, wildlife was managed by the Honduran Department of Wildlife and Ecology (RENARE).
Decree 98–2007, the Forest Law of Honduras, repealed Decree 163–93 of 1993, which contained the Law on Incentives for Forestation, Reforestation, and Forest Protection. The Forest Law sets forth the purposes of the law, and regulates the use of forestry areas, the rational and sustainable management of forestry resources, protected areas, and wildlife. The law contains definitions and created a series of administrative agencies charged with the implementation of forestry regulations, including the National Forestry Consultative Council. This law also formed the National Forestry Research System and the National Institute for Forestry Conservation and Development (211 provisions; pp. 1–17).
Before the 2007 Forest Law was approved, at least 38 laws governed the sector, creating a confusing policy framework. The situation is further complicated because, in many cases, forest tenure (ownership, tenancy, and other arrangements for the use of forests) is unclear. Although most forest is officially state-owned (FAO 2007), states have little practical authority over forest management, and individuals exercise de facto ownership. Corruption is a barrier to legal logging because it facilitates illegal operations and creates obstacles to legal ones (Pellegrini 2011, p. 18; Rodas et al. 2005, p. 53). Bribes are extorted from certified community forestry operations, and, reportedly, without bribes, transport of legal wood becomes impossible (Pellegrini 2011, p. 18; Rodas et al., 2005, p. 53).
The new 2007 Forest Law was supported by environmental groups, but its implementation was delayed. The law included the abolition of the Honduran Forest Development Corporation (COHDEFOR) (which received unanimous support), more resources for enforcement, and harsher penalties against those who commit forest-related crimes. Previously, the director of COHDEFOR and other political leaders were owners or employees of logging companies, an apparent conflict of interest (Pellegrini 2011, p. 20). Also at that time, the army was involved in enforcement. Out of the resources that were spent for the forestry sector, the military absorbed 70 percent without producing any evidence that enforcement had improved (Pellegrini 2011, p. 20).
Currently in Honduras, the great green macaw is believed to exist in eastern Honduras in suitable habitat distributed from Olancho to the Río Plátano Biological Reserve, the Tawahka Biological Reserve, and Patuca National Park (Monge et al. 2009, p. 39). Its range encompasses both unprotected and protected areas; however, timber exploitation occurs even in areas designated as protected. This practice has created conflicts in protected areas such as the Río Plátano Biosphere Reserve, an area that is considered critical for its conservation (Lopez and Jiménez 2007, p. 26). Demand for mahogany, which has been one of the most extracted species in the area (Lopez and Jiménez 2007, p. 26), has also put pressure on this species' habitat. Selective logging creates openings in forest canopies and changes the ecosystem dynamics and composition of plant species. Income from logging is higher than that earned for crops and cattle, making logging far more lucrative for locals. However, after areas are logged, they become more accessible and are then often converted to uses such as crops and cattle grazing.
Indigenous communities have rights to use many protected areas. Article 107 of the Honduran Constitution protects the land rights of indigenous people. It is the duty of the government to create measures to protect the rights and interests of indigenous communities in the country, especially with respect to the land and forests where they are settled (Article 346). As an example of land use by Honduran indigenous communities, between 15 and 40 percent of the total value of consumption for two indigenous Tawahka communities was found to be derived directly from the forest (Godoy et al. 2002, p. 404). Struggle over land rights is a difficult issue for indigenous communities in Honduras. Logging and mining are some of the biggest threats not only to the great green macaw, but also to the indigenous communities. Indigenous cultures generally have a low impact on the forests (Stocks et al. 2007, pp. 1,502–1,503). Because indigenous communities want their lands protected for their traditional way of life, NGOs are working with these communities to protect reserves in Honduras, which should ultimately benefit the great green macaw.
In 1996, the Río Plátano Biosphere Reserve was placed on the “World Heritage Site in Danger” list, but it was removed from the list in 2007, due to a significant improvement in conservation efforts by NGOs. Several NGOs are working in this area including the Mosquitia Paquisa (MOPAWI) and the Rio Plátano Biosphere Project (UNEP–WCMC 2011, p. 5). However, investigations in 2010 and 2011 indicate that there are still problems within the reserve (UNESCO 2011, pp. 1–3). UNESCO, as recently as 2011, conducted a survey in the Río Plátano Reserve and found illegal activity within the core zone (UNESCO 2011, pp. 1–3). Clearing of land for cattle grazing and illegal fishing and hunting along the river is ongoing. The area is protected by policy by the Department of Protected Areas and Wildlife, State Forestry Administration in Honduras. The reserve management plan, implemented in 2000, included zoning and specific plans for conservation issues. One of the goals of the reserve's conservation plan is to integrate local inhabitants with their environment in part via sustainable agricultural practices. This practice has been found to be a good tool in forest conservation (Pellegrini 2011, pp. 3–8). The reserve
There is a complex history concerning the balance of land rights of indigenous communities and preservation of habitat for species such as the great green macaw. In Honduras, there is a gap between forestry policy objectives and the state of forestry. The policy frameworks exist to manage timber extraction, but tools are not implemented (Pellegrini 2011, p. 1). COHDEFOR had been responsible for forestry development and enforcement of laws. The Honduran Government began to decentralize COHDEFOR beginning in 1985 (Butler 2012, unpaginated) due to its ineffectiveness. As of 2001, the management of Honduran forests was administered by the Administración Forestal del Estado (AFE, Government Forestry Administration), Corporación Hondureña de Desarrollo Forestal (COHEFOR Honduran Forestry Development Corporation) (Moreno and Marineros 2001, p. 2). Land use planning occurs at the national level; however, identifying the best use of areas has not been implemented (Pellegrini 2011, p. 17). In addition, estimates of illegal logging are approximately 80 percent of the total volume extracted for broadleaf and 50 percent for coniferous species (Richards et al. 2003, p. 1).
Honduras is making progress in managing its forested resources. In 2010, Honduras implemented Agreement number 011–2010 (Ecolex 2011), the Forestry Reinvestment Fund and Plantation Development, and its goal is to recover areas of degraded or denuded forests. In 2010, Honduras also put into place Decision No. 31/10, the General Regulation of Forestry Law, Protected Areas and Wildlife (Ecolex 2011). This covers the administration and management of forest resources, protected areas, and wildlife. Despite the progress made in Honduras with respect to laws and regulatory mechanisms that affect the great green macaw and other wildlife, the species continues to face habitat loss and degradation in Honduras.
Nicaragua's General Environmental and Natural Resources Law No. 217, issued in 1996, is considered the legal framework that defines the standards and mechanisms in regard to the use, conservation, protection, and restoration of the environment and natural resources in a sustainable manner. It recognizes the sustainable development concept. By 2004, Nicaragua had enacted 10 environmental laws and was a member of regional and international environmental agreements (Moreno 2004, p. 9). As of 2004, Nicaragua was moving towards the consolidation of a National System of Protected Areas (SINAP) in order to preserve the country's biological wealth (Moreno 2004, p. 9). SINAP consists of National Protected Areas, Municipal Ecological Parks, and Private Wildlife Reserves of “ecological and social relevance at the local, national, and international level, defined in conformance with the law, and designated according to management categories that permit compliance with national policies and objectives of conservation” (McGinley 2009, p. 19; Protected Areas Regulations: Article 3). However, the overall protection and administration of SINAP is hindered by an inability to administer its financial and human resources (McGinley 2009, p. 20). Of the 72 national protected areas, only 23 had approved management plans in 2008, another 19 were in some phase of the approval process, and 30 protected areas had no management plan at all (McGinley 2009, p. 20). Despite protections in place, enforcement has been lacking in protected areas, and poverty continues to be a huge concern in Nicaragua (FAO 2011, pp. 1–2; McGinley et al. 2009, p. 16).
Three assessments of the effectiveness of Nicaragua's laws and regulations with respect to wildlife and forestry laws were recently conducted (Pellegrini 2011; McGinley et al. 2009; Castellón et al. 2008). The first explored the relationship between forest management and poverty (Pellegrini 2011). The research published in 2009 evaluated Nicaragua's Tropical Forests and Biological Diversity (McGinley et al. 2009, entire). The other report evaluated the effectiveness of Nicaragua's wildlife trade policies (Castellón.et al. 2008, entire). In Nicaragua, the organization responsible for regulation and control of the forestry sector is the National Forest Institute (INAFOR), which is under the Ministry of Agriculture, Livestock and Forestry (MAGFOR). The other relevant ministry is the Nicaraguan Ministry of Environment and National Resources (MARENA), which supports conservation awareness programs for this species. In early 2003, MARENA created the Municipal Environmental Unit in order to decentralize environmental functions. Although a good legal framework exists in Nicaragua to protect its natural resources, there are still on-the-ground problems that affect this species. For example, in the Indio-Maíz Biological Reserve, one of the strongholds for this species, each forest guard in the control posts along the border of the reserve is responsible for monitoring a stretch of 8 km (5 mi) of the border and an area of 70 km
In 2008, the Government of Nicaragua published a report on the status of its wildlife laws and mechanisms (Castellon et al. 2008, entire). It reported the following findings (p. 9):
• Nicaragua's current laws are inadequate to protect and sustain domestic and international trade in CITES species. They are unfocused and lack provisions on habitat degradation and biological productivity.
• Nicaragua does not have a written wildlife trade policy or laws to underpin sustainable species management in domestic and international trade. The regulatory instruments pertaining to sustainable management of wildlife trade are relevant and coherent and provide a basis for the formulation of such a policy.
• The nonregulatory instruments for measuring the commercial sustainability of wildlife trade are rarely used. The most important of them are: monitoring, research, education, and information.
• Study of wildlife harvesting shows that the income from trade in harvested species goes principally to external actors, with little or no benefit to rural communities or populations.
The 2008 study also reported that the Government of Nicaragua was unable to find a single case in which the application of its laws led to actual fines or penalties for harvesting or trading banned species (McGinley 2009, p. 22). It found that nonregulatory instruments
In addition, specific, targeted conservation measures are occurring. An NGO in Nicaragua, with the support of MARENA, is promoting conservation of this species. They have initiated a campaign to educate communities in part by posting messages on buses on three highly traveled public routes in Managua. For example, one message describes why buying endangered species as pets is not a good idea; rather, they should remain in the wild. Additionally, in 2003, Nicaragua and Costa Rica participated in the First Mesoamerican Congress for Protected Areas. Senior representatives of both countries discussed ways to explore the framework of connectivity between protected areas (Villate et al. 2008, p. 52). As a result, several active conservation measures for the great green macaw in Nicaragua are under way, such as the development of connected habitat corridors, and the great green macaw conservation workshop was held in 2008. In Nicaragua's Indio-Maíz Biological Reserve, training measures for monitoring the great green macaw have been implemented. For example, technicians associated with Fundacion del Rio have been trained in great green macaw research (Chassot et al. 2006, p. 86). The species' population is estimated to be only 871 individuals in Nicaragua and Costa Rica combined (Monge et al. 2010, p. 21), and pressures continue to occur to the species and its habitat. Despite regulatory mechanisms in place and the existence of many strategies in Nicaragua to combat threats to the species such as deforestation, habitat loss, and poaching for the wildlife trade, these activities continue.
The impoverished rely strongly on forest products (Pellegrini 2011, pp. 21–22). In an attempt to reduce poverty and at the same time conserve forested areas, analyses addressing poverty reduction were conducted prior to 2002. Strategies, described as Poverty Reduction Strategy Papers (PRSPs), recommended approving a forestry law by 2002 (which actually was approved at the end of 2003) and addressing deforestation as a source of ecological vulnerability. As part of its poverty reduction strategy, Nicaragua developed a National Development Plan (Government of Nicaragua 2005 in Pellegrini 2011, pp. 21–22), the goal of which was to strengthen the whole forestry production chain. However, the plan was reported not to have been effectively implemented (Pellegrini 2011, p. 22). The main policy instruments that set the framework for forestry were the Forest Law and the logging ban. The Forest Law establishes the system of forest management (Pellegrini 2011, pp. 21–22). The law includes incentives for sustainable practices; however, Pellegrini noted that it is virtually impossible to take advantage of the law's provisions without support by external organizations such as NGOs (Pellegrini 2011, p. 22; TNC 2007, pp. 3–7).
Nicaragua is focusing efforts on the restoration and protection of forested areas, and its goal was to reduce the deforestation rate from 70,000 ha (172,974 ac) to 20,000 ha (49,421 ac) per year by 2010 (McGinley 2009, p. 28). Recently, the Associated Foresters of Nicaragua (FORESTAN), in cooperation with a local NGO, the Instituto de Investigaciones y Gestión Social (INGES), began an initiative to increase forest cover. Their goal is to incorporate conservation and production areas over 5,000 ha (12,355 ac), and more effectively use commercially valuable tree species while at the same time creating permanent jobs (INGES–FORESTAN 2005 in Sinreich 2009, p. 63). In 2006, a logging ban was put in place. The ban prohibited extraction of six species of wood and any logging operation in protected areas or within 15 km (9 mi) of all national borders, and it put the army in charge of enforcement (Government of Nicaragua 2006 in Pellegrini 2011, p. 23). However, deforestation rates may have increased even after the ban's approval (Guzmán 2007, pp. 1–2). Although Nicaragua attempts to manage its natural resources, it has a large challenge due to the pressures for its forest resources in combination with extreme poverty (FAO 2011, p. 1; McGinley et al. 2009, p. 11). Despite these efforts, pressure on the great green macaw's habitat continues.
In Panama, the great green macaw's stronghold is believed to be in Darién National Park, which borders Colombia (Monge et al. 2009, p. 68; Angehr
ANAM was established in 1998, through the General Environmental Law of Panama (Law 41). ANAM is the primary government institution for forest and biodiversity conservation and management. ANAM plans, coordinates, regulates, and promotes policies and actions to use, conserve, and develop renewable resources of the country. Its mission statement is to guarantee a healthy environment through the promotion of rational use of natural resources, the organization of environmental management, and the transformation of Panamanian culture to improve the quality of life (Virviescas et al. 1998, p. 2). Law 41 also provides the framework for SINAP. Environmental protection in Panama falls under the jurisdiction of three government agencies, the Institute for Renewable Natural Resources, the Ministry of Agricultural Development, and the Ministry of Health. There are 17 management categories of protected areas that were established through INRENARE's Resolution 09–94. A later law, the Forest Law of 2004, established protections for three types of forest, which covers 36 percent of the country.
There are political and economic pressures to develop many areas (Devenish et al. 2009b, p. 291). Deforestation, in addition to the lack of management, and lease periods for these concessions of 2 to 5 years, have left only an estimated 250,000 to 350,000 ha (617,763 to 864,868 ac) of production forests in Panama (Gutierrez 2001a in Parker et al. 2004, p. I–10). Additionally, many protected areas in Panama lack adequate staff and resources to patrol the areas or enforce regulations (Devenish et al. 2009b, p. 291). In 1986, Panama initiated a national forest strategy (Plan de Acción Forestal de Panama or PAFPAN) supported by FAO; however the plan reportedly did not directly tackle the causes of deforestation. Between 1980 and 1990, concessions for 77,800 ha (192,248 ac) of production forests were awarded to 23 companies, for periods ranging from 2 to 5 years (Parker et al. 2004, p. II–4). In 1994, a new forestry law was approved, which
Darién National Park extends along about 80 percent of the Panama-Colombia border and includes part of the Pacific coast. The area has been under protection since 1972, with the establishment of Alto Darién Protection Forest. It was declared a national park in 1980. The park is zoned as a strictly protected core zone of over 83,000 ha (205,097 ac). Another zone consists of 180,000 ha (444,789 ac) and contains indigenous Indian populations that have maintained their traditional way of life and culture. Approximately 8,000 ha (19,768 ac) is designated for tourism and environmental education, and the last zone is described as an “inspection zone” which is 40-km (25-mi) wide, and spans the Panama-Colombia border. The Darién forests are threatened from logging, agriculture expansion, burning, and hunting and gathering (TNC 2011, pp. 1–2; Monge
Since 1986, the Asociación Nacional para la Conservacion de la Naturaleza (ANCON) has been actively involved in conservation of the park in conjunction with INRENARE, the World Wildlife Fund, and other conservation entities. In 1995, a biodiversity conservation project was initiated. The project's goal was to involve local communities in conservation and sustainable use activities, and was funded by the United Nations Environment Programme (UNEP) and the Global Environment Facility. The Nature Conservancy (TNC) is also active in conservation efforts in this area through its Parks in Peril program (TNC 2011, pp. 1–2).
Panama has also initiated reforestation efforts. For example, beginning in the 1960s, Panama began to plant
In summary, Panama has a suite of environmental laws in place, and conservation measures are being implemented by the government in collaboration with some NGOs. However, there is very little information available about the great green macaw in Panama (Monge
The CITES Treaty requires Parties to have adequate legislation in place for its implementation. A complete discussion on CITES is found under Factor D for the military macaw. Within the recent past (since 2000), 261 live great green macaws were reported to have been imported by CITES reporting countries, and none of these live specimens were reported as wild origin (UNEP–WCMC CITES Trade Database, accessed December 8, 2011). Under CITES Resolution Conference 8.4 (Rev. CoP15), and related decisions of the Conference of the Parties, the National Legislation Project evaluates whether Parties have adequate domestic legislation to successfully implement the Treaty (CITES 2011a). In reviewing a country's national legislation, the CITES Secretariat evaluates factors such as whether or not a Party:
• Has domestic laws that prohibit trade contrary to the requirements of the Convention;
• Has penalty provisions in place for illegal trade, and has designated the responsible Scientific and Management Authorities; and
• Provides for seizure of specimens that are illegally traded or possessed.
The CITES Secretariat determined that the legislations of Colombia, Costa Rica, Honduras, Nicaragua, and Panama are sufficient to properly implement the Treaty (
In the range countries for this species, we recognize that conservation activities are occurring, and each country has enacted laws with the intent of protecting its species and habitat. For example, in 2002, the San Juan—La Selva Biological Corridor, an area of 60,000 ha (148,263 ac), was implemented to protect the nesting places and migration flyway of the great green macaw in Costa Rica, as far as the Nicaragua border, where very little is known about the species. However, most of the suitable habitat is restricted to protected areas in clustered locations. Oliveira
The information available with respect to the species' population numbers is extremely limited in its range countries, and the populations of this species in these countries all likely range from a few individuals to a few hundred individuals (Botero-Delgadillo and Páez 2011, p. 91; Monge
Based on the best available information, despite protections in place by the respective governments, we find that the existing regulatory mechanisms are either inadequate or inadequately enforced to protect the species or to mitigate ongoing habitat loss and degradation, poaching, and severe population declines. Habitat conservation measures within these range countries do not appear to be sufficient to adequately mitigate future habitat losses. This is due to a suite of factors, such as high rates of poverty in the range of the great green macaw and subsequent pressures for resources, and conflicting management goals (such as economic development and protection of its resources) of its range countries. Therefore, we find that the existing regulatory mechanisms are inadequate to mitigate the current threats to the continued existence of the great green macaw throughout its range.
There have been few quantitative studies of great green macaw populations (Botero-Delgadillo and Páez 2011, p. 91; Monge
The government of Costa Rica, in cooperation with Zoo Ave Wildlife Conservation Park, located in Garita de Alajuela, has participated in a captive bird breeding program (Herrero 2006, pp. 2–3) since 1994. Some of the birds produced have been released in protected areas. However, captive breeding is a controversial issue, mainly due to the reintroduction of individuals. One of the concerns is that the reintroduced birds introduce infectious diseases (which may be in dormant phase for a period of time) into the wild (Brightsmith
There are multiple features of this species' biology and life history that affect its ability to respond to habitat loss and alteration, as well as to stochastic environmental events. Due to its current restricted distribution and habitat requirements, stochastic events could further isolate individuals. An example of a stochastic event impacting the species occurred in 2010, and the death of several nestlings was recorded (Chosset and Arias 2010, p. 15). One nestling fell out of a tree, and, in another case, a branch fell on a nestling while it was actually in the nest and it died (Chosset and Arias 2010, p. 15). Losses such as these can have a significant effect on the population. Additionally, limited available suitable habitat makes it difficult for the species to recolonize isolated habitat patches, which presently exist in a highly fragmented state. This, in combination with the species' nutritional needs, results in the species requiring large home ranges.
One of the difficulties in the conservation of this species that may not be readily apparent is border conflict. For example, at the border of Nicaragua and Costa Rica, despite cooperation efforts; conflict continues (U.S. Department of State 2012, unpaginated; Berrios 2004, entire). The Nicaraguan-Costa Rican border is one of the most conflict-heavy frontiers in Central America (Lopez and Jimenez 2007, p. 21). Migration issues, navigation rights in border rivers, border delineation, and cultural differences all affect these countries' relations (Lopez and Jimenez 2007, p. 21). Additionally, this area has historically experienced exploitation of its natural resources. Since the beginning of last century, foreign companies have engaged in logging, rubber extraction, and mining (Lopez and Jimenez 2007, pp. 24–25). After these resources were depleted and these activities were no longer profitable, some companies left, leaving behind harmful environmental impacts (Lopez and Jimenez 2007, pp. 24–25). These activities have resulted in polluted rivers, high levels of sedimentation in coastal lagoons, and deforested areas (Lopez and Jimenez 2007, pp. 24–25). These activities all subsequently affect the habitat of the great green macaw.
Deforestation in Nicaragua has a complex history. After a civil war throughout the 1980s, land tenure policies inadvertently encouraged farming techniques that led to deforestation, soil erosion, and general land degradation (Sinreich 2009, p. 11). Later, during the 1990s, COHDEFOR opened up timber extraction opportunities to local community organizations, mainly cooperatives, to help mitigate the economic situation for local people. Licenses allowed the use of fallen wood and timber extraction for sale at local markets. However, a study conducted between 1998 and 2000 found that local groups had extracted an enormous amount of timber and there was no monitoring (Colíndres and Rubí 2002). Although the government offered support to communities in its border regions during the period of 1994–1999, tensions continue to affect the Bosawas region of Nicaragua, one of the areas believed to contain a great green macaw population (Lopez and Jiménez 2007, p. 26). Land rights disputes continue to
Our analysis under the ESA includes consideration of ongoing and projected changes in climate (see discussion under the military macaw). The 2008 workshop in Costa Rica addressed environmental disasters in the evaluation and assessment of the great green macaw, although climate change was not specifically addressed. Researchers describe environmental disasters as events that occur infrequently but that can drastically affect reproduction or survival. Monge
A species may be affected by more than one threat. Impacts typically operate synergistically, and are particularly evident when small populations of a species are decreasing. Initial effects of one threat factor can exacerbate the effects of other threat factors (Laurance and Useche 2009, p. 1,432; Gilpin and Soulé 1986, pp. 25–26). Further fragmentation of populations can decrease the fitness and reproductive potential of the species, which can exacerbate other threats. Lack of a sufficient number of individuals in a local area or a decline in their individual or collective fitness may cause a decline in the population size, even with suitable habitat patches. Within the preceding review of the five factors, we have identified multiple threats that have interrelated impacts on this species. Thus, the species' productivity may be reduced because of any of these threats, either singularly or in combination. These threats occur at a sufficient scale such that they are affecting the status of the species now and in the future.
This species' current range is highly restricted and severely fragmented. Each breeding pair requires a large home range to meet its nutritional requirements; it is a large macaw, and its sources of food are becoming scarcer and farther apart, which requires more energy consumption to locate. The susceptibility to extirpation of limited-range species can occur for a variety of reasons, such as when a species' remaining population is already too small or its distribution too fragmented such that it may no longer be demographically or genetically viable. The species' small and declining population size, reproductive and life-history traits, and highly restricted and severely fragmented range together increase the species' vulnerability to any other stressors. Based on the above evaluation, we conclude that the effects of isolation and its small, declining population size, combined with the threats of continued fragmentation and isolation of suitable forest habitats, pose a threat to the great green macaw.
Although precise quantitative estimates are not available, the best available information suggests that populations of great green macaws have substantially declined, and this species likely persists at greatly reduced numbers relative to its historical abundance. The factors that threaten the survival of the great green macaw are: (A) Habitat destruction, fragmentation, and degradation; (B) Overutilization via poaching; (D) inadequacy of regulatory mechanisms to reduce the threats to the species; and (E) small population size and isolation of remaining populations.
The direct loss of habitat through widespread deforestation and conversion of primary forests to human settlement and agricultural uses has led to the fragmentation of habitat throughout the range of the great green macaw and isolation of the remaining populations. The species has been locally extirpated in many areas and has experienced a significant reduction of suitable habitat. The current suitable habitat in Costa Rica is now less than 10 percent of its original suitable habitat (Chosset
We have very little information about the species in many parts of its range (Botero-Delgadillo and Páez 2011, p. 91; Monge
Conservation measures provided to species listed as endangered or threatened under the ESA include recognition, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and encourages and results in conservation actions by Federal and State governments, private agencies and interest groups, and individuals.
The ESA and its implementing regulations set forth a series of general prohibitions and exceptions that apply to all endangered and threatened wildlife. These prohibitions, at 50 CFR 17.21 and 17.31, in part, make it illegal for any person subject to the jurisdiction
Permits may be issued to carry out otherwise prohibited activities involving endangered and threatened wildlife species under certain circumstances. Regulations governing permits for endangered species are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. For threatened species, a permit may be issued for the same activities, as well as zoological exhibition, education, and special purposes consistent with the ESA.
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321
A complete list of all references cited in this proposed rule is available on the Internet at
The primary authors of this final rule are Amy Brisendine and Natchanon Ketram, Branch of Foreign Species, Endangered Species Program, U.S. Fish and Wildlife Service.
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) * * *